EXCHANGE A N THE ROOSEVELT PANAMA LIBEL CASE AGAINST THE NEW YORK WORLD [The United States vs. The Press Publishing Co.] . A BRIEF HISTORY OF THE ATTEMPT OF PRESIDENT ROOSEVELT BY EXECUTIVE USURPATION TO DESTROY THE FREEDOM OF THE PRF/^S IN THE UNITED STATES TOGETHER WITH THE TEXT OF THE UNANIMOUS DECISION OF THE UNITED STATES SUPREME COURT HANDED DOWN BY MR. CHIEF JUSTICE WHITE AFFIRMING THE ACTION OF JUDGE HOUGH OF THE UNITED STATES DISTRICT COURT IN QUASHING THE INDICTMENT. PTUXTRD FOIl TITI-: XK\Y V 1911. WORLD THE ROOSEVELT PANAMA LIBEL CASE AGAINST THE NEW YORK WORLD [The United States vs. The Press Publishing Co.] A BRIEF HISTORY OF THE ATTEMPT OF PRESIDENT ROOSEVELT BY EXECUTIVE USURPATION TO DESTROY THE FREEDOM OF THE PRESS IN THE UNITED STATES TOGETHER WITH THE TEXT OF THE UNANIMOUS DECISION OF THE UNITED STATES SUPREME COURT HANDED DOWN BY MR. CHIEF JUSTICE WHITE AFFIRMING THE ACTION OF JUDGE HOUGH OF THE UNITED STATES DISTRICT COURT IN QUASHING THE INDICTMENT I RINTIiD FOR THE NJfiW YORK WORLU 19x1 \l if Copyrighted. 1911, by TKB PRESS PUBLISHING OO. (The New York World.) The New York World herewith presents the beginning and end of President Roosevelts vigorous but abortive at tempt "by executive usurpation to destroy the freedom of the press in the United States, to re-establish the principle of the odious Alien and Sedition laws and to create here the doc trine of lese-majesty. Lasting quietus was put on the suits, which he instructed his Attorney-General to institute against] The World and its proprietor and editors, on January 3, 1911, when Chief Justice White handed down the unanimous de cision of the United States Supreme Court affirming the action of Judge Hough of the United States Court for the Southern District of New York in quashing the indictment against the newspaper January 26, 1910. As a matter of record it may "be added that fallowing this decision the United States Attorney for the District of Colum bia in due course, on March 31, by direction of Attorney-Gen eral Wickersham, moved in court in Washington the dismissal of the indictments found there on Feb. 17, 1909, against The World, its proprietor and editors, and also those against the Indianapolis News, its publisher ana editor. The Court so ordered. Thus ends The World s fight for the freedom of the press, with the crushing defeat of the last truculent lawless attack. New York, April, 1911, 341568 HISTORY OF THE ROOSEVELT PANAMA LIBEL CASE NOW ENDED BY SUPREME COURT DECISION HOW THE WORLD CAME TO PRINT THE FAMOUS NEWS ARTICLE OF OCT. 3, 1908; WILLIAM NELSON CROMWELL S PART IN JTS PUBLICATION; THE WORLDS DEMAND FOR A CONGRESSIONAL INVESTIGATION; PRESIDENT ROOSEVELT S ATTACK IN A SPECLVL MESSAGE, AND THE LONG LEGAL FIGHT THAT FOLLOWED. Mr. Roosevelt s Panama libel suit against The World had its genesis during the last Presidential campaign in a complaint made by William ^Nelson Cromwell through Ids lawyer, W. J. Curtis, to District-Attorney Jerome on Oct. 1, 1908, that certain persons were trying to blackmail him by reason of his connection with the sale of the Panama Canal to the United States. On Oct. 2 The World received information of Mr. Orom well s complaint, and a reporter was sent out to cover the story. He was unable to get any confirmation from the District- Attorney s office, and so reported to the city editor. Nothing was written and the matter was dropped. Late the same evening Jonas Whitley, a former news paper man employed by Mr. Cromwell as a press agent, came to The World office and told the managing editor that The World was about to print a Panama news arti cle that was entirely false. The managing editor knew not hing about it, so he inquired at the city editor s desk. He was told that The World had no Panama article of any kind or description, but that it had been trying to verify a report of a complaint made by Mr. Cromwell to the District- Attorney and had been unable to do so. Mr. Whitley Stated Substance of the Complaint. Mr. Whitley had voluntarily related the substance of the complaint. He said that the persons who were al leged to be trying to blackmail Mr. Cromwell pretended that Charles P. Taft and Douglas Robinson were mem bers of a syndicate interested in the sale of the Panama Canal, and these persons threatened to exploit the story for political purposes unless Mr. Cromwell bought them off. A synopsis of Mr. Whitley s account of the Cromwell complaint was then dictated to a stenographer, and the typewritten copy was turned over to Mr. Whitley to revise. This manuscript is still in possession of The World. It shows that Mr. Whitley scratched out the name of Charles P. Taft and substituted the name of Henry W. Taft. Then he erased the name of Henry W. Taft and restored the name of Charles P. Taft. 8 The news article, as revised by Mr. Whitley, was printed in The World the following morning, C 1908. It contained the following: in brief Mr. Curtis told Mr. Jerome it had been to Mr. Cromwell that the Democratic National Committ considering the advisability of making public a statement t 1 William Nelson Cromwell, in connection with Mr Varilla a French speculator, had formed a syndicate at the time -when it was quite evident that the United States wduld take over the rights of the French bondholders in the De Lease canal, and that this syndicate included among others i P Taft brother of Widliam H. Taft, and Douglas Robinson, brother-in-law of President Roosevelt. Other men more promi nent in the New York world of finance were also mentioned. According to the story unfolded by Mr. Curtis it was said that * * * these financiers invested their money because of a full knowledge of bhe intention of the Government to acquire the French property at a price of about $40,000,000, and thus because of the alleged information from high Government sources were enabled to reap a rich profit After Mr. Whitley had finished revising this article he telephoned to Mr. Cromwell, and then told the man aging editor of The World that Mr. Cromwell would like to make a statement. Very late that night Mr. Cromwell telephoned to The World office and dictated a statement to one of The World s stenographers. The stenographer s notes were read over to him to make sure that there was no error; he approved them and this statement was printed exactly as dictated by Mr. Cromwell. It said in part : Neither I nor any one allied with me, either directly or in directly, at any time or in any place in America or abroad, ever bought, said, dealt in or ever made a penny of profit out of any stocks, bonds or other securities of either the old Panama Canal Company or the new Panama Canal Company, or ever received for the same* a single dollar of the forty millions paid by the United States. I make this the most sweeping state ment that language can convey. As everybody connected with the affair knows, I abstained from receiving the forty millions in my own hands at Washington or New York as the general counsel of the company, and myself arranged for the payment of the entire forty millions direct from the Treasury of the United States through the bankers of the Government into the Bank of France at Paris to the credit of the liquidators of the two companies. There it remained subject to the order of the liquidators until distributed by them to the hun dreds of thousands of (beneficiaries, and not one dollar of it ever came to me or any one in any wise connected with me, Of course I do not refer to our regular compensation as counsel. I suppose It will be years before the beneficiaries will all be identified and the distribution completely made. The Cromwell complaint was never submitted to a Grand Jury; there was no Grand Jury inquiry as to this alleged attempt at blackmail, and the legal proceeding* on Mr. Cromwell s part against the alleged blackmailers ended with the filing of the Cromwell complaint. It was Mr. Cromwell s complaint and that alone which brought the name of Charles P. Taft into the Panama matter. It was Mr. Cromwell s press agent who brought the names of Charles P. Taft and Douglas Robinson into The World office. But for Mr. Cromwell it is probable that no Panama story would have been printed during the cam paign, and it is certain that the names of Charles P. Taft and Douglas Robinson would never have been published in connection with the affair. Indebted to Mr. Cromwell for Notoriety. When Mr. Cromwell s complaint was made public Mr. Charles P. Taft emphatically denied that he had any connection whatever with a Panama syndicate or with the sale of the canal. Mr. Robinson refused to dis cuss the matter for publication. It is fair to say that the information in the possession of The World com pletely substantiates Mr. Charles P. Taft s denial that he had any interest, direct or indirect, in the sale of the Panama Canal. Why his name should have appeared in Mr. Cromwell s complaint to Mr. Jerome The World has no means of knowing. As to Mr. Douglas Robinson there is nothing to show that he was an associate of Mr. Cromwell s in the sale of the canal. He also is indebted solely to Mr. Cromwell for the notoriety. Great interest was aroused in political circles by Mr. Cromwell s complaint, and The World, as \rall as other newspapers, tried to ascertain if any facts could be dis covered in addition to those which had been dragged to light by Senator Morgan in 1906 in the course of the investigation of the Panama Canal matter by a com mittee of the Jnited States Senate, which investigation had been thwarted by Mr. Cromwell s refusal to answer the most pertinent questions put to him on the ground that as counsel for the !N"ew Panama Canal Company his relations with the canal vendors were privileged and confidential < - 10 Unsuccessful attempts were made to get at the rec ords in Paris and Washington. The World at great ex pense retained an eminent English lawyer, a member 1 Parliament, who went to Paris and made an investi gation on behalf of this paper. Very little additional information could "he obtained, and he reported in part as follows: I have nevor known in my lengthy experience of company matters, any public corporation, much less one of such vast importance, having so completely disappeared and removed all traces of its existence as the New Panama Canal Company. This company having purchased the assets of La Oompagnie Universelle du Canal Interooeanique de Panama (the old or De Lesseps Panama Canal Company) , brought off the deal with the American Government. So thorough has been its oblit eration that only the United States Government can now give information respecting the new company s transactions and the identity of the individuals who created it to effectu ate this deal, and who for reasons best known to themselves wiped it off the face of the earth when the deal was carried through. * * I consulted leading French lawyers, and they declared that there was no machinery, legal or other wise, by which its records could be (brought to light. * * * The stock of the new company was originally registered, so transactions in it could toe traced, tout power was subsequently obtained to transform it into "bearer" stock, which passed from hand to hand without any record being preserved * * * There is nothing to show the names of the owners of the stock at the time of the liquidation of the company and who actually received their proportions of the purchase mom ey paid by the United States. * * * No record exists here of a single per son who received the money or of the (proportions in which it was paid. The liquidation of the new company was finally closed on June 30 last, and the offices of the liquidators were shut. No one is there to give the slightest information con cerning it, although questions are still arising necessitating information. The American Ambassador in Paris was entitled to the archives of the company for his Government, and those archives should include a list of the persons who received the purchase money paid by the United States. Charges Were Unchallenged During Campaign. In all The World printed six articles on the Panama Canal purchase and on the Panama revolution of 1903, giving currency to the charges that there was a syndi cate of Americans who were interested in and received some of the $40,000,000 which the United States paid to the French canal company for the canal property, and that the Administration at Washington and some of the in dividuals who then composed it were cognizant of and had sup ported the plans for the revolution in Panama as a result m of which the present Republic of Panama seceded from the Republic of Colombia and gave to the United States those sovereign rights over the Canal Zone which under its Con stitution Colombia was unable to grant. These articles were reproduced in cmany papers throughout the country, and Mr. Rainey of Illinois expressed his intention of forcing a full Congressional investigation, if possible, when Congress convened in December. At this time Mr. Roosevelt, oblivious of the traditions of his high office, was personally managing Mr. Taft s candidacy. Regardless of his obligations as President of the United States, he had taken charge of the Repub lican campaign and -was the actual boss of the Republi can party. He allowed the Panama charges to pass un challenged, paid no attention to the Panama articles and refused to regard Panama as an issue. Much less did he look upon these articles as a libel upon the United States Government, upon himself or upon any of his associates. On the day before election, however, the Indiaimp- olis News, the leading paper in Indiana, which had re fused to support the Republican national and State, tickets in the campaign, printed an editorial on the Panama scandal and asking who got the $40,000,000 the United States had paid for the canal. Morally the election in Indiana was a decisive Republican defeat, as, although Mr. Taft carried the State by a narrow plu rality of 10,731, a Democratic Governor and a Demo cratic Legislature were elected, a Democrat was sent to the United States Senate in place of Mr. Hernenway, and only three Republican Representatives were elected out of a delegation of thirteen. Mr. Roosevelt and Mr. Roosevelt s friends were greatly mortified and attrib uted the result largely to the Indianapolis News. President Roosevelt Breaks Out in Denunciation. Accordingly, on Nov. 29, 1908, William Dudley Foulke (the convenient gentleman to whom Mr. Roose velt wrote the famous letter: denying that he had used the Federal patronage to bring about Mr, Taft s nomi nation) sent to the President the Panama editorial printed in the Indianapolis News on Nov. 2, and in formed Mr. Roosevelt that "if the statements of the 12 News are true our people ought to know it ; if not true, they ought to have some just means of estimating wni credit should be given in other matters to a join which disseminates falsehoods." Mr. Koosevelt in reply on Dec. 1, 1908, denounced the conduct of Mr. Delavan Smith, editor of the In dianapolis News, as "not merely scandalous but infa mous." He called him "a conspicuous offender againsi the laws of honesty and truthfulness," occupying "the same evil eminence with such men as Mr. Laffan of the New York Sun." He said that such newspapers as the Indianapolis News and the New York Sun "habitually and continually and as a matter of business practise every form of mendacity known to man ;"^ that "the most corrupt financiers, the most corrupt politicians are no greater menace to the country than the newspaper men of the type I have described." Dealing with the purchase of the Panama Canal, Mr. Roosevelt asserted that the United States "PAID $40,000,- 000 DIRECT TO THE FRENCH GOVERNMENT, getting the receipt of the liquidator appointed by the French Government to receive the same;" that "the United States Government has not the slightest knowledge as to the particular individuals among whom the French Gov ernment distributed the sum;" that "this was the busi ness of the French Government;" that "so far as I know there was no syndicate;" that "there certainly was no syndicate in the United States that to my knowl edge had any dealings with the Government, directly or indirectly;" that "the people have had the most minute official knowledge" of the Panama affair; that "even important step and every important document have been made public," and that the "abominable false hood" that any American citizen had profited from the sale of the Panama Canal "is a slander not against the American Government, but against the French Gov ernment." The World s Editorial Reply to President Roosevelt. Up to this time The World had not discussed the Pan ama matter editorially, but when Mr. Roosevelt went so far as to tell the American people that the United States Government "paid the $40,000,000 direct to the 13 French Government 7 it seemed to The World that the time had arrived when the country -was entitled to the truth, the whole truth and nothing but the truth. In an editorial flatly challenging some of Mr. Roosevelt s statements, and proving its case by the official records, The World demanded a Congressional investigation into the Panama scandal. It said: In view of President Roosevelt s deliberate misstatements of facts In his scandalous personal! attack upon Mr. Delavan Smith of the Indianapolis News, The World calls on the Con gress of the United States to make immedlateily a lull and imipartlal Investigation of the entire Panama Canal scandal. The natural query of the Indianapolis News as to "Who Got the Money?" was based on The World s historical summary of Mr. Cromwell s connection with the Panama Canal. The inquiry was originally The World s and The World accepts Mr. Roosevelt s challenge. If Congress can have all the documents in the case, as Mr. Roosevelt says, let Congress make a full and complete investigation of the Panama Canal affair, and in particular of William Nelson Cromwell s relations with the French company, with Panama and with the Government of the United States. Let Congress officially answer the question, "Who Got the Money?" * * * Mr. Roosevelt says "the Government paid this $40,000,000 direct to the French Government;" Mr. Cromwell testifies that the United States paid the money to J. P. Morgan & Co. Mr. Roosevelt says "the French Government distributed the sum;" Mr. Cromwell testified as to how he districted It. Mr. Roose velt talks of "getting the receipt of the liquidator appointed iby the French Government to receive the same;" Mr. Cromwell testified: "Of the $40,000,000 thus paid by the United States Government $25,000,000 was paid to the liquidator of the old Panama Canal Comtpany under and In pursuance of an agree ment entered into "between the liquidator and the new com pany. Of the (balance of $15,000,000 paid to the New Panama Canal Company $12,000,000 have already been distributed among its stockholders and the remainder is now being held awaiting final distribution and payment" * * Whether Douglas Robinson, who is Mr. Roosevelt s brother- in-law, or any of Mr. Taft s brothers associated himself with Mr. Cromwell in Panama exploitation, or shared in these prof its, Is incidental to the main issue of letting in the light. Whether they did or not, whether all the (profits went into William Nelson Cromwell s hands or whatever became of them, the fact that Theodore Roosevelt, as President of the United States, issued a puiblic statement about such an impor tant matter full of flagrant untruths, reeking with misstate- ments, challenging line toy line the testimony of his associate Cromwell and the official record, makes It imperative that full publicity come at once through the authority and by the action of Congress. President Roosevelt then took steps to find out if, among the records and archives received by the Isth- 14 mian Canal Commission from the New Panama Canal Company there were any compromising documents^ In obedience to his orders the documents were examined by Judge Paul Charlton of the War Department and Mr. Kogers, general counsel of the Isthmian Canal Commission. Their report was transmitted by Gen. Luke Wright, then Secretary of War, to President Roosevelt on Dec. 14, 1908. It was to the effect that the records and archives received from Paris contained solely engineering data. President Roosevelt s Amazing Special Message. On the following day President Roosevelt sent a spe cial message to the Congress of the United States which is unique in American history. In it he said: In view of the constant reiteration of the assertion that there was some corrupt action by or on behalf of the United States Government in connection with the acquisition of the title of the French company to the Panama Canal, and of the repetition! of the story that a syndicate of American citizens owned either one or both of the Panama companies, I deem it wise to submit to the Congress all the information I have on the subject. These stories were first brought to my attention as published in a paper in Indianapolis called the News, edited by Mr. Delavan Smith. These stories were scurrilous and libellous in character and false in every essential particular. Mr. Smith shelters himself behind the excuse that he merely accepted the statement which had appeared in a paper pub lished in New York, The World, owned by Mr. Joseph Pulitzer. It Js idle to say that the known character of Mr. Pulitzer and his newspaper are such that the statements in that paper will be .believed by nobody. Unfortunately thousands of persons are ill-informed in this respect and believe the statements they see In print, even though they appear in a newspaper published by Mr. Pulitzer. * * * These stories * * * need no investigation whatever; * * * they are in fact wholly and in form partly a libel upon the United States Government. * The real offender is Mr. Joseph Pulitzer, editor and proprietor of The World While the criminal offense of which Mr. Pulitzer has (been guilty is in form a libel upon individuals, the great injury done is in blackening the good name of the American people, t should not be left to a private citizen to sue Mr. Pulitzer for nbel. He should be prosecuted for libel by the govern mental authorities. In point of encouragement of iniquity, in point of infamy of wrongdoing, there is nothing to choose between a public servant who betrays his trust, a public servant who is guilty of WackmaH or theft or public dishonesty of any kind and a man guilty as Mr Pulitzer has been guilty in this instance. It is therefore a high national duty to bring to justice this vilifier 10 of the American people, this man who wantonly and wickedly and without one shadow of justification seeks to blacken the character of reputable iprivate citizens and to convict the Gov ernment of ihis own country in the eyes of the civilized world of wrongdoing of the (basest and foulest kind, when he has not one shadow of justification of any sort or description for the charges he has made. The Attorney-General has under con sideration the form In which the proceedings against Mr. Pulitzer shall (be brought. Attorney -General Bonaparte Started Criminal Pro ceedings. Under orders from Mr. Roosevelt, Attorney-General Bonaparte instituted criminal proceedings in the courts of the District of Columbia against both The World and the Indianapolis News, and on Feb. 17, 1909, the Grand Jury of the District of Columbia returned an indictment against The Press Publishing Company, pro prietor and publisher of The World; Joseph Pulitzer, the President of the company, and Caleb M. Van ITamm and Robert H. Lyinan, two of the news editors of The World, based on the circulation within the Dis trict of Columbia of copies of The World containing the news articles and the editorial above referred to, and a further indictment against Delavan Smith and Charles R. Williams, the owners and proprietors of the Indianapolis News, based on the circulation in the Dis trict of Columbia of copies of the News which reflected, ns charged, upon ex-President Roosevelt, President Taft, Charles P. Taft, Douglas Robinson, ex-Secretary of State Elihu Root, William Nelson Cromwell and J. P. Morgan, alleged to have been libelled by The World. Government Completely Defeated in Indianapolis. The Government was completely defeated in the In dianapolis News case. United States Attorney Kealing of Indianapolis, a Roosevelt appointee, resigned his position rather than assist in the attempt to remove the defendants from their homes to the District of Colum bia for trial. In his letter of resignation to the Attor ney-General of the United States he said : For almost eight years I have had the honor of representing the Government as United States Attorney. During that time I have prosecuted all alike, without fear or favor, where I (had honest (belief in their guilt. I have been compelled on several occasions to prosecute personal friends, but In each case T only 16 did so after a thorough investigation had convinced me of tnelr guilt. In this case I have made a careful Investigation of the law applicable thereto. As to the guilt or Innocence of the defendants on the question of libel I do not pretend to say. If guilty they should be prosecuted, but properly indicted and prosecuted in the right place, viz., in their koines, with the question of removal that I have to do. I am not in accord with the Government in its attempt to put a strained construction on the law; to drag these defendants from their homes to the seat of the Government, to be tried and punished, while there is good and sufficient law in this jurisdiction in the State court. I believe the principle involved is dangerous, striking at the very founda tion of our form of government. I cannot therefore honest ly and conscientiously insist to the Court that such is the law, or that such construction should ibe iput on it. Not being able to do this, I do not feel that I >can, in justice to my office, con tinue to hold it, and decline to assist. Judge Anderson s Illuminating Opinion. United States District Judge Anderson decided against the contention of the Government, and in discharging Messrs, Smith and Williams from custody said: It was well stated by a former President of the United States that it is the duty of a newspaper to print the news and tell the truth about it. It is the duty of a public news paper, uch as is owned and conducted by these defendants, to tell tne people, its subscribers, its readers, the facts that it may find out about puiblic questions, or matters of public in terest; It is its duty and its right to draw inferences from the facts koown draw them for the people. * * (Here was a great public question. There are (many very peculiar circumstances about the history of this Panama Canal or Panama Canal business. I do not wish to be understood as reflecting upon anybody, in office or out, in connection with this matter, except such persons as I may name in that way. The circumstances surrounding the revolution in Panama were unusual and peculiar. The people were interested in the con struction of a canal; it was a matter of great public concern, it was much discussed. A large portion of the people favored the Nicaragua route. Another portion of those who were inter ested In it, officially or personally, preferred the Panama route. A committee was appointed to investigate the relative merits of the two routes. They investigated and reported in favor of the Nicaragua route. Shortly afterward I do not recall just how soon afterward they changed to the Panama route. Up to the time of that change, as 1 gathered from the evidence, the lowest sum that had been suggested at Wihich the property of the Panama Canal Company could be .procured was some thing over $100,000,000. Then, rather suddenly, it became known that it could be (procured for $40,000,000. There were a number of people who thought there was something not just exactly right about that transaction, and I will say for myself that I ihave a curiosity to know what the real truth was. Thereupon a committee of the United -States Senate was appointed to investigate these matters about the only way the 17 matter could be investigated. The committee met. As stated in these articles, the man who knew all about it I think that in the proper way to speak of Mr. Cromwell who knew all about It, was called (before the committee. Mr. Cromwell upon certain questions being put to him, more or less pertinent, stood upon his privilege as an attorney and refused to an swer. * * * Mr. Cromwell stood upon his privilege when ever questions were asked the answers to which would or might reflect upon him and his associates. But whenever a question was asked which gave ihim an opportunity to say something in their behalf he ostentatiously thanked the ex aminer for the question iand proceeded to answer. To my inind that gave just ground for suspicion. I am suspicious about it now. * * * Now * * * the question is: Did these defendants under the circumstances act honestly in the discharge of this duty, of which I have spoken and which the law recognizes, or were they prompted by a desire to injure the person who is affected by their acts? If it were necessary to decide this case upon the question of privilege, the lack of malice, I would hesi tate quite a while before I would conclude that it was my duty to send these people to Washington for trial. But that is not all. This indictment charges these defend ants with the commission of a crime in the District of Colum bia. The Sixth Amendment to the Constitution of the United States provides: In all criminal prosecutions the accused sihall enjoy the right to a speedy and -public trial by an impartial jury of the State or district wherein the crime shalil have been committed, which district shall have been previously ascer tained by law. * * * To my mind that man has read the history of our institu tions to little purpose who does not look with grave appre hension upon the possibility of the success of a proceeding such as this. If the history of liberty means anything if constitutional guarantees are worth anything this pro ceeding must fail. If the prosecuting authorities have the authority to select the tribunal; if there foe more than one tribunal to select from; if the Government has the power and can drag citizens from distant States to the capital of the nation, there to be tried, then, as Judge Cooley says, this is a strange result of a revolution where one of the grievances com plained of was the assertion of the right to send parties abroad for trial. Another Attempt Made to Stretch the In f.iie face of this decision there was no attempt by the Government to remove Mr. Pulitzer, Mr. Van ! hi n nn and Mr. Lyman from the l^ew York jurisdiction m fho District of Columbia on the indictment pending against them in that district; but to please Mr. Koose- velt another attempt had been made to stretch the lav, so as to permit the prosecution of The World before the Federal courts without again raising the question of removal. IS Under instructions from. President iloosevelt, United States Attorney Henry L. Stirnson, wlio was Mr. Roose velt s candidate for Governor of the State of ISTew York at the recent State election, had also obtained further separate indictments for criminal libel from the Federal Grand Jury in the Southern District of New York against The Press Publishing Company (the corporation which publishes The World) and against Mr. Van jHaram, charging the circulation of twenty-nine copies of each of the issues complained of at and within "the fort and military post and reservation of West Point" and at and within "the tract of land in the borough of Manhattan, in the city of New York/ 7 whereon stands "a needful building used by the United States as a Post- Office," both being "places which had been ceded by the State of New York to the United States." / This indictment, couched in the very language of the no- 1 torious Alien and Sedition acts, expressly charged that it was the purpose of The World to "stir up disorder among the people" (the language of the Sedition act was "to stir up sedition among the people"). In substance and in fact it was an indictment for the publication of what in 1798 would have been alleged in terms to con stitute a seditious libel, tending to stir up discontent and flisaffections and to bring the Government into con tempt. The act on which the Government relied as authority for this unprecedented prosecution was that of July 7, 1898, entitled "An act to Protect the Harbor Defenses and "Fortifications Constructed or Used by the United States from Malicious Injury, and for Other Purposes." It was founded on the act of March 3, 1825, which was tho first Federal enactment of this character. Eighty- five years had passed since Judge Story conceived this statute and since Congress made it a part of the laws of the United States. It had never before been invoked by theFederal authorities as giving them the right to punish libel . It was further assorted by United States At tome y Stimson in a letter to Mr. Jerome that: publications * * * appear to have been circulated by the newspaper in question fn a number of distinct and independent jurisdictions and to contain charges reflecting on the persona] character of a number of men, of whom some id arc In public life and some are private citizens. In each of these jurisdictions, under well known principles of law, each of these publications would constitute a separate offense, and, as it happens in this case, each one is characterized by distinct ansl peculiar features. Sweeping Scope of Government Claim. Ag there are no fewer than 2,809 Government reser vations corresponding to West Point and the Post-Office building, a newspaper of large circulation under this Roose- v eh Ian theory of law might be prosecuted from one end of the country to the othsr by th* Federal authorities for an article that was neither written nor printed on. any of these reservations, but happened to reach them in the ordinary course of circulation. At the suggestion of counsel for The World courr, orders for the issuance of letters rogatory for the exam ination of witnesses were addressed through the usual diplomatic channels to the proper judicial authorities of the French and Panaman Governments. In order to obtain the Government s consent to this procedure it was necessary for The World to pay the expenses of United States Attorney W T ise and Deputy Attorney-General Stuart McXamaru to Paris and of Mr. Knapp of the United States Attorney s office to Panama, as the Government refused to assume any part of the cost of procuring the evidence needed. The letters rogatory having been issued, the State Department in Washington notified De Lancey Nroll, The World s counsel in !NTew York, that the American Ambassador to France had been instructed to assist Coudert Bros., The World s counsel in Paris, in obtain ing the authorization of the Minister of Justice in order that the examination of witnesses could begin about July 12, 1909. On July 18 Mr. Wise wrote to Mr. Do Lancey ^Ticoll that he had received a letter from the Attorney-General "in which he informs me that he has made request for instructions to the American Ambas sador at Paris to facilitate you in all ways to a full and thorough access to the papers of the old and new Pan ama Canal companies." Mr. Wise also informed John D. Lindsay, Mr. .Nicoll .s law partner, that if a personal note from Mr. Taft to 90 the President of the French Republic was necessary to secure evidence in the matter contemplated he WOT obtain such a letter. Efforts to Get at Facts Impeded. This looked very promising, and it seemed certain that the American people would finally know "Who Got the Money." But on June 21 Mr. Mcoll received the following cable from Coudert Bros. : "Government interfering. Wants know nature of case, names, wit nesses, list of questions." Mr. tficoll at once took the matter up with the Attorney-General and with^ the State Department, but the French authorities insisted that the rogatory letters could not be issued, and in a letter written to Mr. Lindsay July 13 Mr. Wise said the American Ambassador had been informed by the "French Foreign Office "that no such examination as was contemplated by us can be had." Mr. Wise added: As you know, I have foeen in Paris for the past week, during which time I ihave known of the before-mentioned difficulties, and heing desirous of affording your client every opportunity to have a full and fair opportunity to conduct its examination, I have arranged with the American Ambassador to permit the use of the rooms at the embassy for the examination of such witnesses as you may desire to calil; he has also agreed that if you and I join in a written request to him to invite such wit nesses to come to the embassy to Ibe examined <he will imme diately communicate with the Secretary of State of the United States .for his approval of such course, and upon receiving such approval, if the French Government does not oibject, he will invite them. I am reliably informed that the French Govern ment will make no objection, and I am sure the Secretary of State will give his approval. This simply meant that such witnesses as might choose to come would give such testimony as they saw fit, and that there could be no thorough examination, such as the case demanded. However, there was noth ing to do but to make the best of the situation. So on July 15 Mr. Lindsay wrote to Mr. Wise asking him to make arrangements "so that I can see to-morrow, if possible, at any time suitable to your convenience, the records of the two companies." In his reply Mr. Wise said: * You seem to assume that I have a power of control over the affairs of these two companies, and that it is only necessary for me to signify my desire that the records of these I companies should be examined and the wish would be grati fied. * * * You are greatly in error. * * * First * * * the new Panama Canal Company Avas a going cor poration at the time when it sold its properties to the United States, and under the French law, which, is quite similar to that of the State of New York, the corporation having no fur ther function to perform went out of existence by its Board of Directors assuming the functions of a Board of Trustees for the distribution oif its assets, and this having been fully per formed, * * * the Board of Trustees * * deposited all of the books of the company with a depository, whidh in this case happened to be the Credit Lyonnais, where under the laws of France such books must remain for a period of twenty years. This having been done, the Board of Directors or the Board of Trustees have no further control over these books and cannot (have access thereto. I know of no way by which it will be possible .for me to arrange for you to see the records of these companies. I do not ibelieve you would be able to examine these records through any court proceeding. I have consulted with eminent French counsel on this subject, and am informed that no court in France could make any order compelling the Credit Lyonnais or its officers to submit the papers to our examination. The World Prepared to Claim Justification. Although thwarted in its attempt to get access to the records of the canal companies, which under the terms of the agreement of sale belong by right to the United States Government and ought to be in Washington, The World pursued its investigations and collected much valuable evidence in Paris and in Panama. A staff correspondent was sent to Bogota and by the cour tesy of the Colombian Government was given certified copies of original records bearing upon the case and other documentary evidence of great value. When the case came up for trial in the United States District Court in New York City, on Jan. 25, 1910, before Judge Charles M. Hough, The World was fully prepared to submit to the jury evidence to sustain the defense of justification which would have been entered had the case gone to trial on its merits. But the form in which the prosecution was brought forced upon The World responsi bilities which could not be disregarded. After stating to the Court that quite apart from the legal questions involved he proposed to interpose the defense of justification, De Lancey Nicoll, counsel for The World, moved that the Court quash the indict- 22 ment, dismiss the proceedings, or instruct the jury to acquit the defendant upon the following grounds: 1. The court has no jurisdiction in this case. There is no statute of the United States authorizing this prosecution. 2. The act at 1898 does not apply to the case, as disclosed by the evidence. " 3. If the act of 1898 is so construed as to cover the acts shown by the evidence it is unconstitutional. 4. The offense, if any, was committed wholly within the jurisdiction of the State of New York, and -was .punishable there. 5. The defendant, being a corporation, is incapaible of com mitting the offense charged in the indictment. But for the menace to the freedom of the press pre sented by Mr. Eoosevelt s unprecedented prosecution, and but for the question of constitutional liberty in its relation to freedom of speech and of the press involved, The World would very much have preferred to let the case go to trial on its merits and present the evidence in its possession to a jury. This could not be done, however, without conceding the existence of a Federal libel law, thereby placing the press of the entire country at the mercy of the President of the United States or of the party in power. While in some future case that might arise the great constitutional issue raised by The World would undoubtedly have been settled by the courts, yet smaller and weaker newspapers, unable to match their resources against the limitless power of the United States Governemnt, might have been bankrupted and ruined in defending their rights. The World s Fight Was for Press of Whole Country. The World, therefore, not merely in its own interest but in the interest of the freedom of the press and in order to safeguard the public s right to a full, free and untrammelled discussion of all national and political questions, felt obliged to resist to the utmost every pre tense on the part of the Federal authorities that there was a Federal libel law, that Federal authorities had a co-ordinate jurisdiction with the State authorities in prosecuting alleged libel if it could be shown that the paper or periodical which had offended the Government happened in the ordinary course of its circulation to reach any one of the 2,809 Government reservation*. So Mr. Me oil contended that tke libels with which The World was charged even if they were libels were cognizable in the State courts and could have been pun ished there, but that there was no Federal libel law, and whatever the language of the Act to Protect Har- borDefenses and Fortifications, tfie whole history of theTaTv of libel in the United States, the history of the statute and the history of the passage of the act of 1825 through Congress all plainly showed that Congress did not intend and the law did not authorize any such pur pose as claimed by the Government. On behalf of the Government, United States Attorney AVise argued that tho act under which the indictment was being pressed could be construed as a Federal libel law. He contended that newspapers were subject to prosecution for libel in the Federal courts as well as in the State courts, with the result that the President of the United States could instigate criminal proceedings against a newspaper in any or all of the 2,809 Federal jurisdictions in which it might happen to circulate, and that a conviction in any one of these jurisdictions would not be a bar to further convictions in others and to further convictions should such be obtainable in each and every State of the Union. Judge Hough Quashed the Indictment. Judge Hough refused to accept this view. In his judg ment quashing the indictment he said: The Court is relieved of much embarrassment by the form of one of the motions made. The jurisdiction of this court is peremptorily challenged by the motion to quash. Other mo tions have been made which will not be considered. But inas much as a decision under a motion to quash is now speedily reviewable by the highest court, I shall dispose of the case under that motion. * * * It seems to me that there is a plain distinction between that jurisdiction which grows out of the necessary exercise of national powers and that which is > based on the physical ownership of areas of land. The first basis or foundation of jurisdiction is governmental and funda mentally governmental. The existence and exercise of that species of jurisdiction is vital to the National Government, tout territorial jurisdiction is merely a convenience. It is fre quently a very great convenience, (but it is no more than that. The criminal statutes passed in the exercise of Congressional authority have always, as far as they have come under my observation, seemed to me to view offenses and offenders from one or two standpoints. The proscribed act is made an offense or crime because it either lessens the authority or attack* the >Treignty, or interferes with the operation of or Injures th 24: property of the United States, or else it is an offense against general municipal law wihich happens to ibe committed upon a place within the exclusive jurisdiction of the nation. Now, it, may he, it has in the past been thought, that under some cir cumstances the Crime of libel might be considered to impair the authority and interfere with the efficiency of the .Govern ment of the United States, but so .far as I know or am informed by counsel, this thought has not found expression in any na tional statute now in force. Therefore in this court the crime \ charged in this indictment is to be regarded only as an offense t against the United States, if it is an offense against the law of New York, which happened to ibe committed upon national Hand physically within the Southern District of New York The question is this: Tihe libellous matter here complained of was printed and published in the county of New York. There- lore the State court sitting in that county ihas jurisdiction. It was also published in the county of Orange; therefore the State court .sitting in that county has jurisdiction. But it was also published in the West Point reservation, whicih is both in \ the county of Orange and in the Southern District of New York, and therefore this court has jurisdiction. To the propo sition that this can foe true I am unwilling to yield assent until instructed by higher authority. * * I am of the opinion that the construction of this act cilaimed by the prosecution is opposed to the spirit and tenor of legis lation for many years on the subject of national territorial jurisdiction. It is a novelty, and the burden of upholding a novelty is upon him who alleges it. * * * It is therefore ordered that a judgment of this Court be entered quashing the indictment herein, because upon the construction of the stat ute, hereinbefore stated, the indictment is not authorized by the statute on which it rests. On the day following Judge Hough s decision The World printed an editorial in which it said : If there exists in Washington the shadow of a suspicion that a Federal libel law can be created by construction or inter pretationif there still remains the likelihood that some day another Roosevelt will prostitute his power by invoking the act to protect harbor defenses in order to prosecute newspapers that have offended him if there be the ghost of a belief that the Federal Government has co-ordinate power with State governments in the prosecution of alleged libel, and that every American newspaper is at the mercy of the President then the sooner there is a final decision of the Supreme Court of the United States the ibetter. Newspapers Everywhere Congratulated The World. .Newspapers of every shade of political opinion in every State of the Union congratulated The World upon its signal victory and joined with this paper in urging President Taft to appeal the case to the Supreme Court. Said The World on Jan. 31, 1910: As the Panama case now stands there is nothing to prevent a future Roosevelt from making another assault upon the free- 25 dom of the press in order to gratify his own personal malice. He can pretend that the United States Government or some official of the United States Government has been libelled. He can select the alleged offender, declare that "he should be prosecuted for libel by the governmental authorities" and order a subservient Attorney-General to institute criminal -proceed-, ings in the name of the people of the United States. * * * Freedom of speech and of the press is not a favor to be exer cised at the pleasure of a President. The immunity of news papers from wholesale Federal prosecution, with the attend ant possibility of bankruptcy and ruin, is either a matter of law or it is nothing. The press is not free if it is to be free only on condition that a President refrains from abusing his power and prostituting his authority. The Federal Government, through its officers, having claimed the right to iprosecute newspapers for criminal lilbel under the provisions of tihe act to protect harbor defenses, is morally obligated to either make that claim good in the court of last resort or to establish beyond quibble or cavil the coustitu- tional irregularity of the whole proceeding. It has no right to leave the issue in doubt. It has no right to leave 22,000 newspapers and periodicals uncertain as to their responsibility under the law. Mr. Taft and ]\lr. Wickersham may both agree with Judge iHo ugh s decision. The World assumes that they do. But Mr. Taft will not always be President of the United States and Mr. Wickersham will not always be Attorney-Gen eral of the United States. Their opinions bind none of their successors. The .power to determine great constitutional questions rests with the Supreme Court of the- United States. In this depart ment of government it alone can speak with full authority, and in dealing with a revolutionary issue that involves public free dom and public liberty nothing is to be taken for granted, nothing is to foe left to chance, nothing is to be left to the whim or pleasure of a President or of a political party in power. On Feb. 26, 1910, the Government filed a writ of error, and the appeal came before the Supreme Court of the United States on Monday, Oct. 24, 1910. It was heard by Mr. Justice Harlan, Mr. Justice White (now Chief Justice of the United States), Mr. Justice Day, Mr. Justice Holmes, Mr. Justice McKenna, Mr. Justice Lurton and Mr. Justice Hughes. The unanimous deci sion of the Court in favor of The World was handed down on Jan-JL 19-11. bv Mr. Chief Justice White. Dismissal of the Washington Indictments. There still remained in force the indictments handed up Feb. 17, 1909, in the Supreme Court of the District of Columbia under the direction of Attorney-General Bonaparte acting on the direct orders of President 26 V Roosevelt. Xo attempt had ever been made to serve warrants on Mr. Pulitzer or the two news editors of The World, although word had been formally sent to the United States Attorney for the Southern District of New York that each held himself subject to the latter s call whenever he wished to push the matter. The effort made before Federal Judge Anderson in Indianapolis in October, 1909, to drag Delevan Smith and Charles R. Williams to Washington for trial had failed utterly. In due course, after a careful consideration of all the papers in the case in the Department of Justice, United States Attorney Clarence R. Wilson, acting under in structions from Attorney-General Wickersham, made a formal motion on March 31, 1911, before Justice Daniel Thew Wright in the Supreme Court of tlie Dis trict of Columbia for the dismissal of these indictments. "It is so ordered," said the Justice. "The indictments were dismissed," said the District- Attorney later, "because the Attorney-General, after considering the decision of the United States Supreme Court in this same matter, came to the conclusion that there was nothing more to be done in those cases." The effort to revive the spirit of the Alien and Sedi tion laws; to establish the doctrine of lese-majesty, had come tp an inglorious end. The decision of the Supreme Court of the United States, while safeguarding the liberty of the press for all time against the encroachments of Federal author ity, and more than justifying the great effort of The World in a cause it knew to be just, yet leaves unan swered the question: "WTio Got the Money? 1 THE ARGUMENT ON APPEAL BEFORE THE UNITED STATES SUPREME COURT Mr. Roosevelt s Panama libel suit against The World came before the Supreme Court of the United States at Washington on Oct. 21, 1910, on an appeal by the Gov ernment from the decision of United States DisUic! Judge Hough, who on Jan. 26 had quashed for lack of jurisdiction the criminal libel indictment returned by a Federal Grand Jury an New York against The Press Publishing Company, the corporation publishing Ths World. Mr. Justice Harlaii presided over the court, and with him on the bench sat Mr. Justice White, Mr. Justice McKenna, Mr. Justice Holmes, Mr. Justice Day, Mr. Justice Lurton and Mr. Justice Hughes. The United States as plaintiff in error was represent ed by Mr. James C. McReynolds, Assistant Attorney- General, and Mr. Stuart McNamara, a special assistam to the Attorney-General, and Mr. De Lancey ISTicoll and Mr. John D. Lindsay of the law firm of Nicoll, Ami Mo. Lindsay & Fuller appeared for The World. The case was reached at 3.45 P. M., just three-quar ters of an hour before the time for adjournment, so briefs were filed, and by consent the case went over until Monday, the 24th, for argument. The Government s Brief. The Government s brief was signed by Attorney-Gen eral Wickersharn, James C. McReynolds and Stuart Mc- Namara. It first recites the substance of the indict ment and quoting the Federal statutes and the New York libel law. The substantial question which the Government claims is before the Court is then set out as being whether or not the United States courts have jurisdic tion to punish a corporation which printed in the city of New York a newspaper containing a libel criminal under the laws of the State of Xew York, and circu lated copies of the same within the Federal territory of West Point. The Government s claim is based on an so act of Congress, 1898, which the Government urge* "operates to transfer the State law to Federal territory, for the purpose of punishing acts committed there which if performed outside and in the jurisdiction of the State would be amenable to its laws." In the Government s brief it is argued that it is not only the right but the duty of Congress so to legislate concerning territory under its exclusive jurisdiction as to preserve peace and good order therein. "Because one may be punished for issuing a libel in New York is no reason/ says the Government, "for allowing him to go free of all punishment for circulating it at West Point. The people in the latter place are entitled to protection." The suggestion that the offense charged could be pun ished in New York State courts, and therefore was not intended to be included in the act of 1898, brought; forth the argument from the Government "that the State of New York cannot punish an offense committed at West Point against the United States." Prief for The World. The brief for the defendant, The Press Publishing Company (the New York World,) is signed by De Lan- cey Nicoll, John D. Lindsay and Raymond D. Thurber of counsel. It recites that the indictment is predicated upon the circulation in Federal territory of six alleged libellous articles which appeared in The World in its issues of Oct. 3, 4, 7, 14, 16 and 19, 1908. Twelve of the fourteen counts charge that the defendant, "con triving and intending to injure" Theodore Roosevelt, then President of the United States; Doug las Robinson, his brother-in-law; William Howard Taft, Secretary of War at the time in question; Charles P! Taft, his brother, and William Nelson Cromwell, an attorney at law practising in the city of New York, to excite them to breaches of the peace/ "and otherwise to *tir up disorder among the people," composed, wrote, printed and published the alleged libels at and within the "fort and military reservation of West Point," in the Southern District of New York, such publication being accomplished by delivering "for perusal by per- 31 sons residing at the said military post and reservation" twenty-nine copies of each of the issues at a store in West Point known as the Post Exchange. Seven counts charge that the defendant composed, wrote, printed and published the alleged libels at and within the United States Post-Office Building, in the borough of Manhat tan of the city of New York, in the same district, and that their publication was accomplished by delivering onr copy of each issue "to one Walter S. Mayer, post- office inspector in charge, at his office in room 106 of the said Post-Office Building." The fourth and eleventh counts charge that the arti cle of Oct. 7 was published in like manner, but that if constituted a libel on Robinson, Charles P. Taft and Cromwell only. The articles relate to certain alleged conduct of the individuals above named, and are averred to have been published not only of and concerning these persons, but also of and concerning the "matter of the acquisition and purchase by the Government of the United States, for the sum of $40,000,000 from the Oompagnie "N ouvelle du Canal de Panama of his property and proprietary rights at the Isthmus of Pan ama, preliminary to the construction by the Govern ment of the United States of the Panama Canal across that Isthmus." The Statute of 1898. The indictment is founded on the act of July 7, 1898, entitled "An Act to Protect tho Harbor Defenses and Fortifications Constructed or Used by the United States from Malicious Injury, and for Other Purposes" (30 Stat., 717). It reads as follows: "That when any offense is committed in any place, juris diction over which has been retained by the United States, or ceded to it >bv a State, or which has been purchased with the consent of a State for the erection of a fort, maga zine, arsenal, dockyard or other needful building or struc ture, the punishment for which offense is not provided for by any law of the United States, the person committing such offense shall, upon conviction in a Circuit or District court of the United States for the district in which the offense was committed, be liable :o and receive the same punishment as the laws of the State in which such place is situated now provide for the like offense when commit- 32 ted within the jurisdiction of such State, and the said courts are hereby vested with jurisdiction for such pur pose; and no subsequent repeal of any such State law shall affect any such prosecution." Pacts Admitted by Both Parties. At the trial the brief quotes from the record that it was admitted by both parties: "That the total circulation of The World on Oct. 3, 1908, was 376,320 copies, of which number 316,456 copies were circulated in the city otf New York, and not upon territory within exclusive jurisdiction of the United States, the re maining 59,870 copies Ibeing spread throughout the United States; that on Oct. 19, 1908, the total circulation of The World was 382,410 copies, of which number 323,198 copies were circulated in the city of New York, and not upon any territory within the exclusive jurisdiction of the United States, the remaining 59,212 copies being spread through out the United States, and that the total circulation of The World on the other dates of publication mentioned in the indictment was about 380,000 copies, of which upward of 320,000 were circulated in the city of New York, but not within Federal territory, the remainder being spread throughout the United States." As it thus appeared that the articles were printed in the defendant s printing office in the city of New York, within the jurisdiction of the State of New York, and that they were circulated in Federal territory in "the regular course of and as a part of the regular circula tion of The World/ 7 the defendant s counsel moved to quash the indictment on the ground, among others, that the prosecution was unauthorized by any statute of the United States, the act of 1898 not applying to the case as disclosed by the evidence. The Court expressed the opinion that Congress, in enacting the measures under consideration, had never intended to do more than intrust to the Federal courts the punishment of offenses "either begun and ended or primarily committed on Federal territory," and quashed the indictment, "because, upon the construction of the statute, heretofore stated, the judgment is not author ized by the statute upon which it rests." Argument of the Defendant s Counsel. In argument the brief emphasizes Be Laneey Nicoll s contention at the trial that the prosecution is without precedent, "that during the eighty-five momentous years the assimilative Federal statute of 1825 has been on the books no one has ever claimed till now that the courts of the United States have jurisdiction to punish a libel first printed, published and circulated in one of the States, and which, in the course of general circula tion, has happened to penetrate into a Federal reserva tion. As there are over two thousand such places in the whole country, the. publication of a single paper, under that interpretation, might constitute more than two thousand crimes. "It would thus upon the contention of the Govern ment," the brief continues, "be possible to crush an owner or editor under an intolerable burden of crime; and, if this be not injustice, oppression and absurdity, we can conceive of nothing that would answer the de scription. If to this be added the possibility of removal, according to the asserted right of the Department of Justice, the entire time and fortune of the unhappy publisher might be absorbed in the endeavor to vindi cate himself." After setting forth with great elaborateness and power the historical aspect of the case, argument is made that "the effect of the adoption by Congress of the State law is that, for the purposes of this case, the State stat utes are in force throughout the entire territorial limits of the State;" that the State law provides (section 251 of the Penal Code) that "a person cannot be indicted or 1 ried for the publication of the same libel, against the same person, in more than one county," and that there fore tho Government s contention that a libel is a sep arate punishable offense on every "Federal reservation into which the paper may find its way, necessarily makes criminal what the State law expressly say? i? not criminal. Tt is further argued that the State was competent to publish the publication of the thirty copies covered in the indictment, as the publication was within tho Jtiris- diction of the State of ISTew York; and a concur rent jurisdiction wa? never intended. Moreover, "By isolating this trivial portion of the act of publication, and creating out of it an independent crime, Congress would run counter to the policy of the State and to its theory of the law of libel. It would give to the offense committed in Federal territory an accumulation of punishment, instead of the one accorded to it by the law of the State, In spite of the expressed purpose to the contrary. In substance it would create a new offense one not known to the State law." Mr. McReynolds Opened for the (lovernweut. Two hours sufficed for the arguments before the Su preme Court on Monday, Oct. 24. The same Justices sat on the bench. Attorney-General Wickersham took no part in the argument. James C. McReynolds, in opening the case for the Government, said : May it please the Court, this is a writ of error to re view a judgment of the Circuit Court in New York quashing an indictment against The Press Publishing Company, which owns and prints and circulates the ]STew York World. The indictment was based on cer tain alleged slanderous statements in reference to Mr. Eoosevelt and Mr. Taft and others, charging them with corrupt conduct touching the acquisition of the Pan ama Canal. The indictment is fair on its face and it was not demurred to. It charges that these articles were composed, printed and published within the con fines of West Point and also in the Post-Office Build ing in ISTew York City, both being places under the exclusive jurisdiction of Congress. Mr. Justice Harlan: You say "printed?" Mr. McEeynolds: The indictment charged that they were printed, published and circulated within the limits of these two places. Mr. McReynolds then read to the Court section 2 of the act To Protect Harbor Defenses on which the pros ecution of The World for criminal libel was based. TTo continued: The Government s contention is that the effect of that statute is to make the State law at West Point and similarly situated places Federal law, and to give the Circuit and District courts power to enforce the pro visions of the State law, not because it is State law, bin because it has become by this adoption Federal law Now it is admitted here that West Point and the Post-Office Building are both "places" within the mean ing of this statute. Libel is a misdemeanor under the New York Penal Code. For brevity s sake I will leave out the question of the Post-Office in this discussion, for there is no difference between the two places from the Government s standpoint. A plea of not guilty was interposed and the case went to trial. Certain ad missions were made, the jury being in the box, by the defendant. They admitted that they had published these articles in The World, that The "World was a paper of general circulation, that copies of The World went to West Point in the ordinary course of its circu lation. Then the Government admitted that The World, in which these articles appeared, was actually printed in Park .Row; that it was not actually printed within the confines of West Point, and that the copies of it which contained this article and upon which this indictment was based were sent into West Point in the ordinary course of circulation. Mr. Justice White: Sent by the newspaper itself? Mr. McReynolds: Sent by the newspaper itself as a part of its ordinary circulation some 29 or "30 copies. Then evidence was introduced by the Government tend ing: to establish the colloquium. Mr. McReynolds then told of quashing the indict ment and discussed the technical point of whether the c.a?e was now in "moot case" or not. He continued: Coming now to the larger question, it is this: A newspaper is actually printed within the city of ~N"ew York and outside of "Federal jurisdiction. Copies of that paper are sent, in the resrular course of its circu lation, into West Point and there distributed. Articles contained in the papers are libellous and an indictment- fair upon its face is found. Now, does the fact that the flptual printing was not done within the confines of West Point destroy the power of the "Federal Govern ment under this act of 1898 to punish the offense of libel? The definition of libel in the New York Penal Code is substantially the same as the ordinary one at common lav;. The Government s Contention Plated. The Government s contention, in brief, is this: Under the well-understood doctrine in respect of libel, everv publi cation, every passing of the paper containing the libel from 36 one person to another, is a separate and distinct offense. West Point is a district under the exclusive jurisdiction of Congress, and offenses committed there cannot be pun ished by the New York law at all, and can only be pun ished, of course, by an act of Congress which directly pro vides for the punishment, or indirectly by adopting the State law. Offenses committed at West Point are offenses not against the State of New York, but against the United States, and how they shall be punished is a mat ter for Congress and Congress alone. In other words, in respect of libel West Point stands substantially in the same attitude as the District of Cohimbia, and it is not only within the power of Congress to provide for the punishment of libel circulated at West Point, but it is the duty of Congress to do it. There is no question here of whether or not a man may be indicted more than once, or whether for the same cause he may be indicted in more than one dis trict, and if there is, it is the settled law that in every county in the United States when a newspaper is circu lated, if it contains a libel, somebody is guilty of libel and may be indicted there, and there is no more reason for permitting the circulation of slanderous papers within the confines of West Point than there would be to permit them to circulate in New Jersey with the same impunity. Therefore I submit that under the ruling of this Court in the case of Franklin v. United States it is perfectly clear that an offense has been committed against the United States. The only ques tion is how it shall be punished, and that has been pro vided for in plain terms by the statute. Mr. Justice Harlan: What do you say was deckled in the Franklin case ? "Mr. McEeynolds: The construction of this act of 1898. De Lancey Nicoll s Argument for the Defendant. On behalf of the defendant "De Lance y Nicoll replied as follows : ^ Tf Your Honors please, the only question in this case is whether this prosecution is authorized by the aot of )8, to which reference has just been made bx the learned Assistant Attorney-General. It appears from 37 the record that on Oct. 3, 1908, during the Presidential election of that year, and on the subsequent days men tioned in the indictment, the defendant, the Press Pub lishing Company, composed, printed and published at its printing house on Park Bow, in the city of New York, each day 380,000 copies of the paper known as the New York World; that 320,000 copies of the paper circulated throughout the State of New York, 60,000 copies circulated throughout other parts of the United States; that 29 copies on each day went into the ceded place known as West Point, and that one copy on each day went into the ceded place known as the Post-Office Building in the city of New York. It is the contention of the Government that by the circulation of these 29 copies in West Point as an incident of the daily circu lation of The World on each day, and by the circula tion of one copy of the paper in the Post-Office Build ing in the city of New York two separate, distinct and independent crimes of libel were committed, one in West Point and the other in the Post-Office Building in the city of New York, and that the act of July 7, 1898, gives the courts of the United States jurisdiction to punish these two alleged offenses. We answer the Government s contention by saying that the construction contended for by it is within nei ther the spirit nor the letter of the act of July 7, 1898. The learned Assistant Attorney-General contends that the burden is upon the defendant to show that its case is not within the statute, in view of what is termed its plain language. But I do not understand that to be the law. The ele mentary rule is that criminal statutes must be construed ?trictly in favor of ,the defendant, and that before a man can bo convicted of a crime his case must be plainly and unmistakably within the statute, and that if there is any fair doubt upon the subject, that doubt must be resolved in favor of the accused. My first proposition is that even if the language of the act of July 7, 1898, were literally broad enough to cover the case at bar, it should not be so construed for several reasons. The first is that the acquiescence of all legal minds for nearly a centnry in the negative of the proposition 38 forbids the construction now for the first time asserted by the Government. The second is that the construc tion contended for by the Government would lead to injustice, oppression and absurd consequences. The third is that the construction contended for is not only unnecessary to remedy the definite evil or mischief which the framers of the act of 1825, upon which the act of 1898 is modelled, had in mind, but would lead to another evil which it was the intention of the framers of that act to avoid. My fourth contention is that the construction of the Government is at variance with the whole life and history of the country. Let us now consider the first reason, which is that the general acquiescence of legal minds for almost a cen tury in the negative of the proposition forbids the con struction now for the first time asserted by the Gov ernment. fhe Indictment Has No Predecessor. The indictment in this case is sui generis. It has no predecessor. Books and records may be searched in vain to find one like it. It is, indeed, a legal curiosity. Although the law upon which the Government relies has been upon the statute books of the United States for eighty-five years, during which period the Govern ment has been served by Attorneys-General and Dis trict-Attorneys of distinguished learning and ability, and during which the great newspapers of the United States have been circulating throughout the States and to these ceded places, this is the first time in the history of the administration of American criminal law when this jurisdiction of the United States has been asserted. I say that it has been eighty-five years since Mr. Jus tice Story conceived this statute and Congress made it a part of the law of the United States. During this period four wars have been fought one of them a civil war, in which desperate passions were aroused and tho very existence of the nation was at stake; three Presi dents have been assassinated; the country has passed through twenty Presidential elections; it has survived a number of financial panics ; but notwithstanding these and other crises in our national existence, and all the fierce discussions of the press which accompanied them, 39 no one has ever claimed till now that a libel first com posed, printed and published in the States, and circu lated in a ceded place only as an incidental part of its general circulation, could be punished in the courts of the United States. It has remained for the lawyers of our day and generation to spell out of this statute au thority for this proceeding. Is it possible that during all thi^ dme, when without doubt libellous matter printed in che States has circu lated to the ceded places, perhaps reflecting upon per sons resident there, that if such a jurisdiction as this existed no one would have thought of it before ? To my mind this long period of inactivity is a most impressive argument against the contention now made by the Government. It seems to have become the settled judgment of all lawmakers, lawgivers and law administrators in this country that no such jurisdiction as is now asserted exists. As was said by Mr. Justice Johnson, in delivering (7 Cranch, 32), denying the right of the Federal courts the opinion of the Court iii United States v. Hudson to exercise a common law jurisdiction in criminal cases: Although this question is (brought up now, for the first time, to be decided by this Court, we consider it as having been long since settled in public opinion. In no other case, for many years, (has this jurisdiction "been asserted; and the general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. I may say in passing that the discoverer of this new and amazing method of punishing libel, the luminous intellect whose rays first detected in this ancient statute this long hidden jurisdiction, is not the present Attor ney-General of the United States. Profound as is his learning and deep his penetration, he is not equal to this. A proper tribute to greatness compels me to accord all of the honor to his immediate predecessor. To him, and to him alone, we are indebted for the in terpretation of the statute upon which this prosecution depends, and for the revelation that, although the Se dition law expired by limitation over a century ago, Congress, without intending it, really re-enacted it in the year 1825 and reaffirmed it as late as the year 1898. 40 My next contention is that a literal construction of the statute would lead to injustice, oppression and ab surd consequences. Possible to Crush Under an Intolerable Burden. According to the theory of the Government the pub lication of the alleged libellous matter in each ceded place on each day is a separate and independent crime, It was a separate and independent crime to circulate in the ceded place known as West Point; it was also a separate and independent crime to circulate it in the Post-Office Building. This very indictment charges two separate and independent crimes. It appears from the record that there are at least fifteen of these ceded places in the Southern District of New York alone, and that there are over two thousand such places scattered throughout all of the States of the United States. If the theory of the Government is adopted, then fifteen separate and independent crimes were committed on each day in the Southern District of New York alone , and if the circulation extended, as the circulation of this paper does, throughout all the States of the United States, and probably into all of the ceded places, then the defendant committed over two thousand crimes on each day, and was exposed to prosecutions in every part of the United States. He might be prosecuted for circu lating the paper in the Navy Yard in Portland, Me.; he might also be prosecuted for circulating the same paper in the Presidio at San Francisco. And it is to be observed that this theory would not require the Gov ernment to elect, because its contention is that the cir culation^ in each one of the ceded places is a separate and distinct offense. It would thus be possible to crush an owner or editor under an intolerable burden of crime, and if this be not injustice, oppression and ab surd, I can conceive of nothing that would answer the description. If to this be added the contention asserted by the Department of Justice, of the right to remove a defendant from one district to another for trial, it if? apparent that the entire time and fortune of an un happy publisher might be absorbed in an endeavor to vindicate himself. Such a construction, of course, i* opposed to the fundamental principle of criminal jurii- prudence, that crime is not divisible, and that where the impulse is single but one indictment will lie, no matter how long the action may continue. It is not necessary for the decision of this case to impeach the constitutionality of the statute which we are considering, but when we remember that the first amendment of the Constitution of the United States provides that Congress shall pass no law abridging the freedom of the press, it at least raises a substantial do/bt as to whether a statute which puts it in the power of the Federal Government to so harass and oppress a pub lisher as to make it impossible for him with safety to discuss freely public affairs does not come within the prohibition of the amendment. Would Create an Evil Congress Intended to Avoid. This brings me to my third objection to the Govern ment s construction, which is that it is not only unneces sary to remedy the definite evil aimed at by Congress but it would create an evil which it was the intention of Congress to avoid. The act of 1898, as has been stated, was founded upon the act of 1825. When we come to review the history of the passage of that act through Congress, and the debates which attended it, it becomes apparent that the act of 1825 had one general purpose, and only one to provide for the punishment of acts which could not be punished by the States, and which, if not proso- fiited by the Federal Government, would go wholly unpunished. The definite evil aimed at was the defect in the Criminal Code of the United State?, which al lowed so many crimes to go unpunished. The first Federal Crimes act was passed at the second session of the First Congress, and was approved by President Washington on April 30, 1790. It was soon discovered to be defective. Many crimes escaped pun ishment because Committed in places within the Union but excepted from State jurisdiction, and because tho Federal law failed to provide for the offenses in ques tion. Statutes were passed from time to time to supply these deficiencies and the view was advanced that the Federal courts were authorized to exercise a common law jurisdiction in criminal eases a contention which 42 was disposed of by this Court, an WP have soon , in the case of United States v. Hudson. .Mr. Justice Story was a member of the court and par ticipated in that decision. He was quick to perceive its results and the necessity for legislation by Congress. Accordingly in 1813 he prepared and sent to Attorney - General Pinkney some sketches of improvement in the Criminal Code of the United States with a letter, in which he said: It is grossly and barbarously defective. The courts are crippled, offenders, conspirators and traitors are enabled to carry on their purposes almost without check. "What think you," he queried in a letter shortly afterward, "of a government where public crimes on the seas are, with very tfew exceptions, lelft wholly unpunished, and crimes on the land are suffered to remain without the least criminal action?" But notwithstanding the necessity pointed out by Mr. Justice Story, ten years elapsed before the matter was taken up by Congress, a delay which is accounted for only by the fact that the country was then passing through a period of reaction from the "ardent nation alism" which culminated in 1812, and because the lead ers in Congress were too jealous of the new and unex pected powers which the National Government had been found to possess to pass a law conferring upon it even adequate jurisdiction in criminal cases. Meanwhile Mr. Justice Story had drawn a bill deal ing with the subject, the eleventh section of which became the basis of section 3 of the act of 1825, and of section 2 of the act of 1898, upon which the indictment is founded. This, he said, in a carefully prepared argument in which the bill was taken up clause by clause, and its provisions and purposes explained, la the most important section of the whole bill. The Crimi nal Code of the United States is singularly defective and Inefficient. * * Few, very few, of the practical crimee (If I may so say) are now punishable by statutes, and if the courts have no general common law jurisdiction (which te a vexed question) they are wholly dispunishable. The State courts have no jurisdiction of crimes committed on the high seas or in places ceded to the United States. Rapes, arsons, batteries and a host of other crimes may ID these places be now committed with impunity. Suppose a conspiracy to commit treason In any of these placet by 48 civil persons, how can the crime be punished? These are cases where the United States have an exclusive local juris diction. And can it be less fit that the Government should have power to protect itself in all other places where it exercises a legitimate authority. That Congress has power to provide for all crimes against the United States is in contestable. Again he said: The printed (bill was originally -prepared by myself and submitted to my brethren of the Supreme Court. It re ceived a revision from several of them, particularly Judges Marshall and Washington, and was wholly approved by them, and indeed, except as to a single section, by all the other Judges. Judge Johnson expressed some doubt as to the eleventh section; but, as I understood him, rather as to its expediency than the competency of Congress to enact it. I think that I am at liberty to say that it will be satis factory to the Court if it is passed. With Mr. Justice Story s draft before him, Mr. Web ster, who was Chairman of the Committee on the Judi ciary, drew a bill, which with some modifications passed both houses of Congress. "Where the States Had Power to Punish." The debates upon the bill show clearly that the sole purpose of the act was to punish crimes which would otherwise have gone altogether unpunished that is, to punish crimes begun and ended, or primarily com mitted, within the exclusive jurisdiction of the United States, for which there was no law. But they show another thing with equal clearness, and that is that where the States had the power to punish an offense there was no intention to confer any jurisdiction upon the Federal Government. Mr. Justice Harlan: Wliat do you say concerning r-he punishment of a libel in the ceded district ? Mr. Nicoll : We have the power to punish under the State law. Under this very law of New York, to which reference has been made, we punish the publication as one indivisible act. Mr. Justice Harlan: It is only punished iu TsTew York where it is printed, then? Mr. Nicoll: This act takes over the New York stat ute, and under the New York statute the act of publi cation is the thing that is punished. The publication is regarded as one and indivisible, 44 Mr. Justice Harlan: What do you mean by the pub lication ? .Mr. Nicoll: The New York Code defines it and states what publication is. Section 243 of the ^ Penal Code "provides that a person who publishes a libel is guilty of a misdemeanor." Section 245 provides: To sustain a charge of publishing a libel it is not neces sary that the matter complained of should be seen by an other. It is enough that the defendant knowingly displayed It or parted with its immediate custody under circum stances which exposed it to be seen or understood by an other person than himself. Mr. Justice Holmes: Is it part of your argument, Mr. Nicoll, that the words "when an offense is com mitted/ which is a curiously ambiguous expression, must refer to a State law ? Mr. Nicoll: Yes. Mr. Justice Holmes: And that it must mean that when something is done which under the State law, if it had jurisdiction, would be punishable there, it should be punished there ? Mr. Nicoll: Yes. Mr. Justice Holmes: And that under the State law this kind of a publication at West Point was not an offense at all, because the only offense that was com mitted was the parting of possession of the newspapers from the place of printing in New York ? Mr. Nicoll: That is it precisely, but it is not the point I am discussing now. That will arise when I come to point out that this case is not even within the letter of the statute. What I am now showing is that, no matter how plain the letter may be, it is not within the spirit of the statute and was not intended by its framers. Mr. Justice White: Is there any room to come to the spirit, for you say "no matter how plain ?" Mr. Nicoll: I think so; let us see Mr. Justice White : I do not want to interrupt your argument, it just struck me. Mr. Nicoll (continuing): I should have called Your Honors attention to two cases in this court which seem to me to settle everything whidh I have stated on that point. They are to be found on pagee 12 and 13 of the 45 brief. One is the case of United States v. Palmer, 3 Wheat., 610. An illustration of the rule, even more impressive, is to be found in the case of Holy Trinity Church v. United States, 143 U. S., 457. There it was held that an act forbidding the importation of aliens "under con tract or agreement * to perform labor or ser vices of any kind in the United States" did not include a contract between an alien and a religious corporation, whereby the former removed to the United States and entered into the service of the latter as its rector. In the course of an exhaustive opinion, delivered by the late lamented Mr. Justice Brewer, it was said : The construction invoked cannot be accepted as correct. It is a case where there was presented a definite evil, in view of which the Legislature used general terms with the purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legisQated against. It is the duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the in tention of the Legislature, and therefore cannot be within the statute. The determined purpose of Congress to avoid any question of conflicting jurisdiction appears particularly throughout the debates upon the fourth section. Tt is there apparent that the principle that there should not be created a concurrent jurisdiction in the, State nud "Federal Governments to punish crime was vigorously asserted in the debates on the bill, and found expression in it against, in one particular, the powerful opposition of Webster. No Intention to Give Federal Courts Jurisdiction. Now, I think that, notwithstanding tho broad lan guage of the act, any one who reviews its history and Considers the situation as it existed at the time, and as it was pressed upon the attention of Congress, cannot fail to see that there was no intention under this act to give the courts of the United States jurisdiction of any offense which could be punished by the States. Let me illustrate : Take the case of a conspiracy committed \vithin the State. An overt act is committed, we ^vfQl 46 say, in a ceded place, which might, perhaps, gire the courts of the United States jurisdiction over the of fense. But that was not intended, because it was a crime consisting of more than one act, where some acts were committed within the State and some without the State, and where the State had jurisdiction to punish on account of the acts committed within its borders. Or take the crime of nuisance existing on territory adjoining a ceded place but affecting persons dwelling fhere. Here there is no reason why the United States should punish the offense. The States have full juris diction. And so with the crime of libel first printed find published in the -States where some of the news papers happen to float to the Federal place in the ordi nary course of daily circulation. In other words, where, nnder this act, a State -can punish the offense the courts of the United States have no jurisdiction. Its only jurisdiction is where the States cannot punish. If in one of these Federal places a person should set up a printing press and circulate a paper containing libels, or if one could write and circulate libellous matter with in the ceded territory, it is clear that only the United States would have jurisdiction to punish the offense. No Ear to Federal Prosecutions? Any ^other view would lead to the very difficulties which it was the purpose of Congress to avoid. If thr> Government s theory is sound, the publisher of an al leged libel originally uttered in State territory, but incidentally spreading into one of these ceded places, might, after a trial and acquittal or conviction in a State court, be subsequently prosecuted and punished in a Federal tribunal because of the technical republi- cation of the libel on national soil. Would the acquittal or conviction in the State court be a bar to the Federal prosecution ? Our adversaries say no, because an act of publication operating In two distinct jurisdictions con- - titutes two crimes, one of which will go wholly unpun- t shed unless by means of a Federal prosecution. let us suppose that in the Congress of 1825 some member had offered a bill giving the Federal Govern ment the nght, in terms, to take cognisance of news- paper libels incidentally circulating in Federal terri tory, or of any other crime punishable under State laws, provided only that some portion of the crime, however trivial, took place on Federal soil. Can it be believed vhat such a measure would not have been received with nn outburst of indignant protest from every other mem ber of the House ? Yet it is seriously contended that he act of 1825 accomplished precisely this result. My last contention on this point is that the construc tion contended for by the Government is at variance with the whole life and history of the country, because its necessary result would be to confer upon the Fed eral authority the power to control the press. The Power to Control the Pret*s. There are in the United States over two thousand Federal places, scattered all over the "Onion. They are to be found in large numbers in every State, and neces- arily in every judicial district. It is a matter of com mon knowledge that in almost all of them the news papers which are printed in all of the States circiilate a greater or less extent. In order to bring these acts within the jurisdiction of the Federal courts all that the Department of Justice need do is to find some opies of the offending journal circulating in one or more of these places and then proceed with a prosecu tion of the publisher on the theory that the courts of the United States have jurisdiction because of the inci dental publication of the libel in its territory. The prosecution might, it is true, take the form of an indict ment for libel of an individual, but the theory, once ^tablished, would put it in the power of the Federal Government to use the courts of the United States to prosecute any publisher who had attacked the Govern ment or the character of "public officials by criticising their public acts. In a word, it would give the Federal O-overnment complete control of the press of the United States. ff this theory can be maintained we shall revive in our day and generation the Sedition act, of 1798, whicli for over a century has been condemned, not only as unconstitutional but as contrary to the genius of our free institutions ; for if there is one thing in this coun- 48 try which is settled by the verdict of history it IB that the power to control the press shall not be intrusted to the ISTational Government, but shall be left to the tri bunals of the several States. Is it possible to suppose that the Congress of 1825 intended to pass an act which would enable Federal courts to exercise this forbidden power? History of the Notorious Sedition Act. The answer is to be found in the history and fate of the one memorable attempt of the Federal Government to assume that very jurisdiction, an attempt which, in 5825 was still fresh in the memory of public men. On July 14, 1798, was passed the notorious Sedition act (1 Stat., 596), section 2 of which made it punish able, under heavy fine and imprisonment, to print or publish any false, scandalous and malicious writings against the Government of the United States, or either House of Congress, or the President, with intent to defame them, or to bring them into contempt or dis repute, or to excite against them the hatred of the good people of the United States, or to stir up sedition, or with intent to excite any unlawful combination for opposing or resisting any law of the United States, or any lawful act of the President, or to resist, oppose or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation again sfc tho United States. Although the act by its terms was to continue in force only until the 4th day of March, 1801, the preju dice against it was so strong and universal that, accord ing to the unanimous judgment of historians, it led to the overthrow of the Administration, the election of Jefferson and the ascendancy of the Republican party. Mr. Justice Farlan: "What have you to say as to the nower of Congress to make it an offense against the United States to circulate a written document in tho West Point Reservation, which contains a libel? Mr. "Nicoll: Congress has not done so. It may be nrgiied that Congress has the power to do so, although think there would be very grave doubts about the constitutionality of such an net, but at all events Con gress hasn t done so, 49 Mr. Justice Harlan: I think, perhaps, it might have *ome bearing upon the exact question here. Mr. Nicoll: Congress has not passed such an act. I do not suppose that if such a proposal had been made in Congress in 1825 it would have received any sup port. I believe it would have been met with the unani mous protest of both houses of Congress if at that time anybody had proposed to give the Federal Government the power which is indicated by Your Honor s question. Mr. Justice Harlan : I did not intend to express any opinion about the matter. I only wanted to get your views on that subject. Mr. i^icoll (continuing) : I was speaking of the very general public feeling against the Sedition law. As is well known, the prosecutions under the act were very unpopular. The impeachment proceedings against Jus tice Chase were based, in part, upon his conduct in ono of them. Jefferson and Madison at once took the posi tion that the act was unconstitutional, and embodied these views in the famous Kentucky and Virginia reso lutions. The criticism of the act, and the widespread convic tion that it was unconstitutional, were not based on any particular stringency in its provision, but upon the bolief that Congress had no power to legislate upon tho subject of libel, that being a matter peculiarly within the cognizance of the State?. The Kentucky resolu tions asserted that Libel*, falsehoods and defamation, equally with heresy and false religion, are withheld from the cognizance of Federal tribunals. The act wag even opposed by Marshall and Hamilton, probably the two ablest constitutional lawyers in HIP ranks of the Federalist party. On his accession to the Presidency, Mr. Jefferson pardoned every one who had been convicted of a vio lation of it. In a letter to Mrs. Adams, the wife of his predecessor, who wrote him complaining: about the par don of Callender, who had been convicted of libelling her husband, he said: I do not know who was the particular wretch alluded to, but I discharged every person under punishment or prose* eution under the Sedition law because I considered, and now consider, that law to (be a nullity. On Sept. 11, 1804, lie again wrote to Mrs. Adams: While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so. They have ac cordingly, all otf: them, made provisions for punishing slan der, which those who have time and inclination resort to for the vindication of their characters. In general the State laws appear to have made the presses responsible for slander as (far as Is consistent with its useful freedom. The Trial of Judge Peck. In 1830 occurred, in the room in which I am now speaking, the trial of Judge Peck before the Senate of the United States. Two of the managers on the parr, of the House of Representatives were James Buchanan and Mr. McDuffie of South Carolina. Both of them were members of the House in 1825, and Buchanan was one of the members of the Judiciary Committee which reported the Crimes act of that year. Indeed, it was ho who offered the resolution which finally resulted in the enactment of the law. In his argument on the trial of Judge Peck in 1830, although he had been a warm supporter of the act of 1825, Mr. Buchanan, after referring to the constitu tional prohibition against the making of any law abridg ing the freedom of speech or of the press, said : What was the Intention of this provision? The framers of the Constitution well knew that under the laws of each of the States composing this Union libels were punishable. They therefore left the character of the officers created under the Constitution and laws of the United States to be protected by the laws of the several States. They were afraid to give this Government any authority over the sub ject of libels, lest its colossal power anight be wielded against the liberty of the press. They have guarded it with a wholesome and commendabble jealousy. * * * The popular odium which attended this law was not excited by its "particular provisions, but by the fact that any law upon the subject was a violation of the Constitution. Congress had no power to pass any law of the kind, good or bad. It is now, I believe, freely admitted (by every person (I at least have not for several years conversed with any man who held a contrary opinion) that Congress, in passing this act, had transcended their powers. I have no doubt that the motives of many of those who passed it were perfectly pure; [but yet, if any principle has been established beyond 41 a doubt by th almost unanimous opinion of the people of the United States it is that the Sedition law was uncon stitutional. In the same case Mr. McDuffie said: In pronouncing sentence of condemnation upon this Sedi tion law the ipeople of the United States have solemnly decided that the Federal Legislature has no power to pro tect the public functionaries from even the most abusive and licentious exercise of the freedom of the press, holding that the State Legislatures and State tribunals are more safe depositories of that power; and suoh is the plain lan guage of the Constitution. In 1833 Mr. Buchanan, then Minister to Kussia, told Count ISTesselrode that The press was essentially free in our country. Even the Oongress of the United States had no power to pass any law for the punishment of a libel on the President. This subject was entirely within the jurisdiction of the several States. In 1836, in consequence of a recommendation con tained in a message from President Jackson, a select, committee of the Senate returned a bill prohibiting the Transmission through the mails of inflammatory publi cations tending to incite popular discontent, and giving the President power to decide as to the character of the publications sought to be transmitted. In a speech in opposition to the measure Mr. Calhoun asserted that It would place in the hands of the General Government, an instrument more (potent to control fche freedom of the press Mian the Sedition flaw itself. On July 4, 1840, President Van Buren approved an act directing the Secretary of the Treasury to pay to the legal representatives of Matthew Lyon the fino which had been imposed on Lyon in 1799 under the Sedition act, with interest in full. House Report in the Matthew Lyon Crs?. In reporting the bill to the House the Committee on tli<* .IndiViorv adontpfl a report nf the same committee made in 1830, which roads as follows: The committee are of ooinion that the law above recited wag unconstitutional, .null and void, passed under a mis taken exercise of undelegated Dower, and that the mistake ouffht to be corrected by returning the fine so obtained, with interest thereon, to the legal representatives of Mat- 52 thew Lyon. The committee do not deem it neoeeaary to dlactiBB at length the character of that law, or to assign all the reasons, however demonstrative, that have induced the conviction of its unconstitutionality. No question con nected with the lilberty of the press ever excited a more universal and intense interest ever received so acute, able, long continued and elaborate investigation was ever more generally understood or so conclusively settled toy the con curring opinions of all parties. All that now remains to be done by the representatives of the people who condemned this act oif their agents as unauthorized, and transcending their grant of power, to place ibeyond question, doubt or cavil that mandate of the Constitution prohibiting Con gress from abridging the liberty of the press, and to dis charge an honest, just, moral and honorable obligation, is to refund from the Treasury the fine thus illegally and wrongfully obtained from one of their citizens, for which purpose the committee herewith report a bill. The bill passed the House by a vote of 124 to 15. "Thus," says Wharton, "just forty years after the pas sage of the iSedition law was its last vestige effaced and its doctrines formally disowned." In 1844 and again in 1850 Congress passed similar acts, respectively approved by Presidents Tyler and Fillmore, directing the repayment of the fines which had been imposed on Anthony Haswell in 1 800, and on Thomas Cooper in 1798, under the Sedition act. In 1881 David Dudley Field, one of the most emi nent jurists of our generation, speaking of the Sedition act, said: If this were within the competency of Congress, the pun ishment of libel upon any officer of the United States woirld be equally within its competency. Indeed it is not easy to perceive why Congress might not take upon itself all reme dies, criminal and civil, for any wrong done to the good name, person or property of any Federal officer, and send the parties before the Federal courts for trial. Can there foe any doubt that such -an assumption of power was never dreamed of by those who framed or those who ratified the Federal Constitution? And in Ex parte, McLeod, 120 Fed. Rep., 130, de cided in 1903, the Court said: Profound distrust of the ability of the people to govern themselves, alone, made it possible to enact the Alien and Sedition laws, which expired by their own limitations and were ever afterward condemned by the aggressive power or a dominant puiblic opinion, which proclaimed as a maxim of government that greater danger to liberty and free insti tutions lurked in any power to curb the right of free speech and liberty of the press than from any abuses which might result from leaving them untrammelled. This public opin- 58 ion, which has been acquiesced in by all departments of the Government, and gone unchallenged for a century past, has pronounced a construction of the Constitution in this re spect which has silently incorporated itself into that in strument. President Roosevelt s Message of Dec. 15, 1908. In view of this chapter of our history the special message to Congress of the President of the United States of Dec. 15, 1908, makes curious reading. Speak ing of the newspaper stories, then recently in circula tion, with respect to the transactions alluded to in this indictment, the President said : I do not believe we should concern ourselves with the particular individuals who wrote the lying and libellous editorials, articles from corresipondents or articles in the news coilumus. The real offender is Mr. Joseph Pulitzer, editor and proprietor of The World. While the criminal offense of which Mr. Pulitzer has been guilty is in form a libel upon individuals, the great injury is done in (blacken ing the good name of the American people. It should not be left to a private citizen to sue Mr. Puilitzer for libel. He should be prosecuted for libel by the Government au thorities. In. point of encouragement of iniquity, in point of infamy, of wrongdoing, there is nothing to choose be tween a public servant who betrays his trust, a public ser vant who is guilty off blackmail or theft or financial dis honesty of any kind and a man guilty as Mr. Joseph Pulit zer has been guilty in this instance. It is therefore a high national duty to bring to justice this vilifier of the Ameri can people, this man who wantonly and wickedly and with out one shadow of justification seeks to blacken the char- ,acter of reputable private citizens, and to convict the Gov ernment of his own country in the eyes of the civilized world of wrongdoing of the basest and foulest kind, when he has not one shadow of justification of any sort or de scription for the charge he has made. The Attorney-Gen eral has under consideration the form in which the pro ceedings against Mr. Pulitzer shall be brought. Here we have reincarnated the very spirit of the Sedition law the theory that strictures upon the con duct of public officials are not to be treated as mere libels upon individuals, but constitute a sort of treason, against which all the "colossal power" of the Federal Government should be wielded. In the performance of their "high nationality" the Government authorities sought "to bring to justice thifl vilifier of the American people" who had sought "to convict the Government of his own country in the eyes of the civilized world of wrongdoing of the basest and 54 foulest kind" through the instrumentality of this indict ment, charging, not a libel on the Government, but merely the defamation of certain individuals. But this is only the form of the prosecution. It is in substance and in fact an indictment for the publication of what in 1708 would have been alleged, in terms, to constitute a seditious libel, tending to stir up discontent and disaffec tion and to bring the Government into contempt. In deed, this is expressly charged, namely, that it was the defendant s purpose "to stir up disorder among the people." The language of the Sedition act was "to stir up sedition." 1 he First Prosecution in 85 Years. So much for the spirit and purpose of the act of July 7, 1898. What answer does the Government make io all of my contentions ? I say that this is the first prosecu tion under the statute since its enactment eighty-five years ago, and that the acquiescence of all men in th*} negative of the proposition shows that no such jurisdic tion exists. The Government replies, "What of it ? We have discovered a new jurisdiction; it is better late than never." I say "your construction of the act leads to injustice, oppression and absurd consequences." The Government replies: "When did criminals not complain of the in convenience of prosecutions ? * What rogue e er felt the halter draw with good opinion of the law f I say that the history of the passage of the act through Congress indicates that it was not intended to confer jurisdiction upon the Federal courts. To which the Government replies: "Why, there is the plain letter of the law." I say that the whole life and history of the country is at variance with the Government s contention, to which the reply is "7/0 scriptum est" if it is within the letter of the statute it must be within its spirit. I now say, as my second proposition, that the case is not even within the letter of the statute, because the acts charged as the basis of this prosecution, to wit, the circulation of twenty-nine copies of the paper in West Point and of one copy in the Post-Office Building are not acta which are punishable under the State law. *8 The Government and I agree that this act of July 7, 1898, must be treated as if the State law were actually incorporated in it. Mr. Justice Holmes: There is one point upon which I would like to be assured there is an agreement between you. If the other side agrees to it I have nothing to say. It is possible to interpret these words "when an offense is committed" in a somewhat different sense. I quite appreciate the suggestion that you must interpret them as meaning when an act is done which would be an of fense by the criminal law of the State within which the reservation is situated, if those laws extended over that territory. But would it not be possible to say that the words "When an offense is committed" refer to the well- known categories of the common law, without reference to the law of the State that when anything is done which, by common understanding or common law, is an offense, then it may be punished if you find in the ma chinery of the State law anything that will punish it? Mr. Nicoll: That is not our view of the act. I do not say that such a view might not be taken, but I am sure it is not the correct one. For this Court decided in the case of United States v. Franklin, 216, U. S., 559, which was referred to by the learned Assistant Attorney-Gen eral, that by this act Congress adopted for the govern ment of the ceded places the criminal laws then existing in the several States within which such places were situ ated, in so far as said laws were not displaced by specific acts of Congress. Mr. Mcoll (continuing): The act of July 7, 1898, punishes as, in fact, it could punish only an "offense committed" in Federal territory. What is such an of fense so committed? As I have said, the criminal law of the State in which the Federal territory is situate, is made the basis of criminality under the act of Co: Kress the test whether or not a given act is of a char acter sought to be punished by the latter. What M no- criminal when done within the jurisdiction of the State is not criminal when done within the jurisdiction of 1 Federal Government. It is equallv clear that the act or acts done within Federal jurisdiction must be 8 uch that they would, I and of themselves, if done within the jurisdiction of the State, constitute a crime against the laws of the State. There must be an "offense committed" within the Fed" eral territory. This imports, of course, a completely consummated breach of the criminal law. If it were not that, to punish it would be to punish what was not a crime. The New York State L,aw of Criminal Libel. This brings us at once to a consideration of the New* York law of criminal libel. When the act of Congress of July 7, 1898, took effect, the criminal law of New York, both substantive and procedural, had been codi fied for seventeen years, and was to be found in the New York Penal Code and the Code of Criminal Procedure. The sections of the Penal Code relating to the subject are to be found in the Government s brief and our own, but we have added extracts from the Code of Criminal Procedure, because the whole law of criminal libel in the State of New York is to be found in both Codes, and not in the Penal Code alone. Section 243 of the Penal Code provides: "A person who publishes a libel is guilty of a misde meanor." It is the publication of the libel which is here made a crime, not the publication in this or that place or to this or that person. The act is treated as one and indivisible. Section 245 of the same Code provides: To sustain a charge of publishing a libel it is not neces sary that the matter complained of should have been seen by another. It is enough that the defendant knowingly displayed it, or tparted with its immediate custody, under circumstances which exposed it to be seen or understood by another person than himself. As it is the publication of the libel which is made criminal, the crime is necessarily complete when onco the libel is displayed, or its custody parted with, under the circumstances specified. Sections 24& and 250 relate to the place where the offense of publishing a libel shall be prosecuted. They provide that in the case of a libel upon a resident it hall be prosecuted either in the county where the per- 67 son alleged to be libelled resides, or in the county where the paper is published. If an indictment is found in the former county it may be removed to the county of pub lication upon giving a bond. In the case of a libel upon a non-resident, the prosecution shall be in the county in which the paper, on its face, purports to be published, or, if it doesn t so indicate, in any county in which it was circulated. Finally, section 251 provides: A person cannot .be indicted or tried for the publication of the same libel, against the same person, in more than one county. These are all the provisions found in the Penal Code. Turning now to the Code of Criminal Procedure, sec tion 138, we find similar provisions as to the place for the prosecution of the libol. Section 139 provides: When an act charged as a crime is within the jurisdic tion of another State, Territory or county, as well as within the jurisdiction of this State, a conviction or ac quittal thereof in the former is a bar to a prosecution or indictment therefor in this State. And section 140 provides: When a crime is within the jurisdiction of two or more counties of this State, a conviction or acquittal thereof In one county is a bar to a prosecution or indictment thereof in another. What is the policy of the New York law of criminal libel as disclosed by the sections which I have just read 2 What does it punish ? How does it treat the acts consti tuting the offense? What does it make punishable? What is made criminal is the publication of a libel, and a single libel can be punished but once. Since the act of publication is not confined to one spot, the crime is, in its nature, capable of punishment in more than one place ; and this principle finds recognition in the various provisions determining the county in which the prosecu tion shall be had. It is none the less a single crime, pun ishable but once; and where it has been once punished, whether in the State of New York or in some other State, Territory or county, it cannot be again punished in the former. Here is the completest refutation of the theory of the divisibility of the publication and the mul- 5* tifariousness of the crime, upon which the whole prose cution rests. Granting that Congress might constitu tionally provide a separate punishment for the distinct- act of circulating libellous matter in Federal territory, it has not done so. It adopts the New York law; and that law provides, in the case of each article, one pun ishment for the entire series of acts connoted by the term "publication/ and makes that punishment exclu sive of any other. It also fixes a place where the punish ment shall be inflicted, namely, the county in which the libel is published, or the county where the libelled per son resides; or, under special circumstances, any other county in which the paper was circulated. It is thus clear that what is punished under the State law is the entire publication ; and that it is punished at a place and in a manner necessarily exclusive of the Federal authorities. The effect of the adoption by Congress of the State law is that, for the purposes of this case, the State stat utes are in force throughout the entire territorial limits of the State. But if, in fact, the State law of criminal libel had been in force throughout the whole of New YV>rk and Orange Counties, it is perfectly evident that it would not have made one crime, or two, out of the publication of these thirty copies. It would not have punished the particular acts in question at all, except as they constituted a part or incident of the entire publica tion of the paper on the day in question. In punishing the Whole it may be said to punish the parts; but it attempts to punish the parts only by and through pun ishment of the whole. Concededly, however, the Fed eral Government has no power to punish the whole of fense, and it is not attempting to do so. In proceeding to punish the parts as complete and as independent crimes it is attempting to construct a crime out of whar, is, under the State law, insufficient for that purpose. If the act of Congress permits this, then it necessarily makes criminal what the State law does not make crimi nal, in spite of the expressed intention to the contrary. Counter to the Whole Policy of the State. To sum the matter up, I say that this contention of the Government runs counter to the whole policy of the 59 State of New York relating to criminal libel. It rests upon a proposition which is ignored by the statutes of that State. While the Government is here endeavor ing to apply the law of the State of New York to the acts of circulation at West Point and in the Post-Office Building, it is putting a construction upon the New Y r ork statute, which is directly at variance with its policy. For the prosecution is based upon a small and incidental part of the circulation. Whereas under the New York law the publication is treated as one indivisible act. Moreover, the contention of the Government leads to a double punishment, where the State statute provides for but one. The law of New York treats the publica tion of a libel as an indivisible act, constituting a single crime; and a conviction or acquittal of this crime "with in the jurisdiction of another State, Territory or country" is a bar to a prosecution therefor in New York. This language does not embrace a prosecution in a place ceded to the Federal Government and under its exclu sive jurisdiction. So that although a conviction or ac quittal in any other State or Territory of this country, or in any foreign country, would prevent a prosecution in New York, a prosecution, or any number of prosecu tions, in places within the jurisdiction of the Federal Government would still leave the accused open to an- othjer indictment in New York. Plainly, this was never intended. I may say also that tho circulation of even these thirty copies twenty-nine in West Point and one in the Poat- Office Building was punishable in. the State of New York, for the papers were put in circulation and circu lated from the defendant s printing office throughout the United States. When the defendant delivered these copies of the paper in the jurisdiction of the State of New York to an agent or messenger, with the intent that they be delivered to the purchaser, the offense of publishing a libel was committed and was punishable i the State of New York. So whether we consider this prosecution from thr standpoint of the spirit of the act of 1898; whether WP construe that act in the light of what occurred, and 1 situation as it was presented to Congress in 1825, o 00 whether we take the letter of the act itself, I say that this prosecution is unwarranted and totally unsupported by any proper construction of the act. Prosecution Belongs to a Aew Dispensation. As a matter of fact, the prosecution is premature, it was born before its time, it belongs to that new dispen sation when the Federal Government shall have taken to itself all power and all authority, and the States shall have been reduced to mere geographical divisions of the national domain; when the Federal tribunals shall no longer decide cases in accordance with precedent and authority and the law of the land, but in accordance with the need and spirit of the times, as they may be in terpreted by some great steward of the public welfare. Mr. McReynolds Closes for the Government. Mr. Mclxeynolds in closing for the Government said: The question for decision here is a question of law, not a question of policy. Libel was not excluded from the Story act in 1825. Its terms were broad enough to include it. It was followed by the act of 1866, and still libel was not excluded from it. Its terms and words were wide enough to include it. It went into the compi lation of 1877 in the same form. The act of 1898 -was passed, and still libel was within the words of the act, and finally the act of 1909, passed in March of that year, about three months after this message from the President of the United States calling attention to this very situation. That act is broad enough in its terms to include libel. ISTow, if there be anything in the history of this act through the eighty-five years of its existence, does it not prove conclusively that it was the purpose of Congress to exclude nothing from the words of the act, and that they were intended to mean just what they did mean at the common law ? Is it conceivable that through all these years Congress should have done this thing with its eyes wide open, and especially is it conceivable that it should have passed the act of 1909 after this very case was under consideration, with terms broad enough to in clude it ? si Mr. Justice Day: The act of 1909 ? Mr. McKeynolds : Yes, sir. Mr. Justice Bay: That is the codification of the law * Mr. McReynolds: Yes, sir. It is the act of March 4, 1909. Bear in mind that the President of the United States had sent that message to Congress in December preceding calling attention to this very libellous situa tion, yet in the face of that Congress passed it. What could be plainer? A man publishing a libel in the State of New York becomes guilty of a misdemeanor. By publishing that same libel in West Point he becomes guilty of a misdemeanor. It is not the same offense, of course. One is an offense against the laws of New York. Mr. Justice Harlan : What statute is that ? Mr. McEeynolds: Page 1,477 of the 1909 supple ment or compiled statutes. Now, what could be plainer? Is it possible that Jus tice Story did not see this might happen ? Is it possible that all of the other great lawyers who have spoken about it had not seen this might happen ? Is it possible that during these eighty "five years nobody, until my learned friend on the other side began to investigate it, ever saw it was not the purpose to include libel within this statute ? But beyond all that, why should not libel be included in the statute? Wliat reason is there that a man should be allowed the immunity of circulating libel in the District, of Columbia contrary to the peace and good order of this vicinity? The Same Offense Punishfd Twice. Mr. Justice Day: In the District of Columbia could not the offense be reached by one of the statutes of the District ? Mr. McEeynolds: Certainly, and that is just what 1hey are undertaking to do here. This is a statute of the United States Mr. Justice Day: It is not a statute of the district of West Point? Mr. McKeynolds: No; it is a statute of the Umt4 States applicable to West Point, just as much as thf statutes of the United States arc applicable to the Dis trict of Columbia. 62 Mr. Justice Day: I simply desire to call your atten tion to the situation where the same offense might be punished twice. Mr. McKeynolds : I was calling attention to policy, not to the present condition of the law. Why should not the people of West Point be protected from the bad effects of a libel circulated within that territory ? Mr. Justice Lurton: Was the paper received by any person made the subject of this libel? Mr. McReynolds: Not so far as it appears. The in dictment upon its face does not show where those par ties resided. Mr. Justice Harlan: What parties? Mr. McEeynolds: The parties libelled Mr. Roose velt, Mr. Taft, Mr. Robinson and Mr. Charles Taft of Cincinnati. Now, everybody knows a publication in the law ,of libel is not confined to the mere printing of the thing. We all know that under the well established doctrines the (Crime of libel is committed every time the defamatory written thing passes from one hand to an other. A man by publishing a newspaper in the city of New York and sending a copy into every county in every State of the United States commits a separate arid distinct offense in every one of those counties. Mr. Justice White: You mean by the law of "New York. Mr. McReynolds: By the law of New York. Mr. Justice White: Then, as I understand it, the greatest difference between yourself and counsel on the other side, as I see it, is your difference -as to what the law of New York is. Mr. McReynolds : I differ from him absolutely. Mr. Justice White: I say that is the greatest differ- once between you. Mr. McRevnolds: Perhaps so, if there be degrees. Mr. Justice White: Do you say it wa* intended to adopt the laws of New York? Mr. McReynolds: I do. Mr. Justice White: And make the laws of New York applicable and not the common law? Mr. McReynolds: Yes, sir, I do. Mr. Justice White: The precise prorigions of the laws of New York ? Mr. McReynolds: Yes, sir. Mr. Justice White: That is the contention of the other side, as I understand it. Claims Separate and Distinct Offenses. Mr. McReynolds: You have not heard any discussion here from niy friend on the other side about the effect of circulating in the State of New York a libel actually printed in the State of New Jersey, and I undertake to say that under the law of New York every copy of that paper published in the State of New Jersey and circu lated in the State of New York constitutes a separate and distinct offense. Mr. Justice White: You mean printed instead of published? Mr. McReynolds: No. I do not me*n the printing absolutely in there. Mr. Justice White: In New Jersey? Mr. McReynolds: Oh, if it is printed in New Jersey, yes, T beg your pardon. If the paper is printed in New ark, New Jersey, and copies are sent into the State of New York, the publisher, the owner, if you please, the man who is responsible for the printing and circulating of that paper, is a criminal in every county in the State of New York where that paper is circulated. Mr. Justice Day : Is that under section 250 ? Mr. McReynolds: Tinder section 243, where a person who publishes a libel is guilty of a misdemeanor. Mr. Justice Day: Section 250 covers indictment for libel published against a non-resident. Mr. McReynolds: That is for an indictment \vfhere the paper is published inside of the State of New York. There is a distinction made in the State of New York Between publication inside the State of New York and publications made outside of the State, or printing-, T mean, outside of the State. The newspaper printed in- n-de of the State of New York has certain privileges ||rhich a newspaper printed outside the State of New ork has not got. As to the newspaper printed outside i>f the State of New York and circulated in the State 64 of New York, he is guilty of a misdemeanor wherever a copy is delivered. Mr. Justice White: Now, then, you say by the law of New York, where a paper is printed in New York it stands in a better position? Mr. McReynolds: It does. Mr. Justice White: If this statute adopts the law of New York, why does it not give the same advantage to the paper in New York as it would give if it were printed there? Mr. McReynolds: If you grant that you have not advanced. Mr. Justice White: I do not say I have, but I am trying to. Mr. McReynolds: Even if you grant that, these pro visions are in reference to the places where the libel may be prosecuted and not as to the place where the crime may be committed. Mr. Justice Day: This indictment does not show upon its face whether these parties were residents of the State of New York or not. Mr. McReynolds: 1 do not think it does. Mr. Justice Bay: Does it appear in the motion to quash ? Mr. McReynolds: No, I think not; I do not recall it. Mr. Nicoll: I think it shows as to Mr. Cromwell and one other, but not as to the majority of the individuals. Mr. McReynolds: I do not recall that it showed it at all. Mr. Justice Lurton: Did I understand you to say there is no averment in this indictment as to the resi dence of any of the libelled parties ? Mr. McReynolds: I do not recall it. Mr. Nicoll : There is no averment as to residence in the indictment. Mr. Justice Lurton: Which of these two sections, then, does this case come under, sections 249 or 250? Mr. McReynolds: This indictment does not show on its face where these people were. It was not demurred to, and if that question was desired to be raised it should have been done by some proper pleading. Mr. Justice Lurton : The indictment was quashed ? fttf Mr. McKeynolds: It \\\as quashed because the Court held in broad terms this act of 1898 did not apply to libel committed or circulated by a publication in West Point. Mr. Justice Lurton: This Court would not be held down to that ground ? Mr. McKeynolds: Not at all. Now, I say a libel pub lished anywhere by circulating the paper containing if in the State of New York is a misdemeanor, and it is not necessary to allege in the indictment whether A party is a resident or is not a resident. If the parties by way of defense want to bring that forward, it is incumbent upon them to do ,so. Mr. Justice "White : Let me see if I understand your position. I do not just get it, and I would like to have it straight in my head. As I understand this proceed ing, the law of New York says if a libel is printed in the State of New York then it can be only prosecuted in two places where it is printed or where, if a man is a resident of New York, he resides. Mr. McKeynolds: Yes, sir. Mr. Justice .White: Here is a libel printed in New York. You do not show these people reside at West Point, and therefore under the lav. of New York, if you apply the law of New York totidem verbis, here is a paper printed in Now York which could not, under the law of New York, be prosecuted in New York at all. Mr. McKeynolds: Yes, sir. Mr. Justice White: And then you go on and by anal ogy say, "But the New York law prevails if a paper i* printed in New Jersey." If a paper is printed in New Jersey and circulated in New York it can be prosecuted anywhere in New York. JVhat has that provision to do^with the case, except you reason by remote analogy with a paper printed in New York? How do you conio to adopt the law of New York as to a paper printed in New Jersey? That is the trouble in my mind. I may be confused about it. Mr. McKeynolds: I will see if I can make mysell intelligible to Your Honor. In the first place, this v. not a prosecution in New York. This is an attempt to punish what is made an offense in New York in Federal courts. .Therefore the provision of the Nw York Code, which merely asserts the place of prosecu tion, has no effect. Mr. Justice White: I understand you now. There fore your answer that there was no fundamental differ ence between yourself and your adversaries as to the statute disappears. Mr. McReynolds: These provisions in reference to the place of prosecution in New York of course do not apply to West Point. You cannot prosecute in the Federal courts an offense which was committed inside the State of New York. Mr. Justice White: I see your point. Mr. McReynolds : But you can prosecute an offense made such by the statute of New York and committed inside of West Point. Mr. Justice Day: Notwithstanding there are limita tions when the matter is published in the State of New York? Mr. McReynolds: Certainly. Mr. Justice Day: That is your argument? Mr. McReynolds: Certainly. I can see no reason why you cannot. Otherwise you could not punish them at all. Mr. Justice Day : In other words, these provisions as to the place of prosecution have no application to this situation ? Mr. McReynolds : Why, of course not. Mr. Justice Day: That is your argument? Mr. Justice Holmes: Your argument depends upon whether that provision about prosecuting is merely a matter of procedure in the act and not a matter of sub stantive law. Mr. McReynolds: Certainly. Mr. Justice Holmes: Whereas the contention of the other side is that amounts really to a limitation of lia bility, it means to say that in view of the possible enor mous liability that might be imposed upon a newspaper there should not be any such liability, and that it shall be liable only where the paper is delivered from the printer or the office. Mr. McReynolds: Exactly. Mr. Justice Holmes: If that be a principle of sub stantive law and not merely a matter of procedure, would you not have to admit that it applied to West Point ? Mr. McReynolds: I think so. 1 think we would be out of court, but I do not think any such construction could be put upon it. I attempted to show this mere possibility of subjecting a man to many prosecutions for merely one issue of a paper could have nothing to do with the case because he was already subject to prosecution in every county of the United States where a copy of that paper circulates. {DECISION OF TBE UNITED STATES SUPREME COURT.] Supreme Court of the United States. No. 541. OCTOBER TERM, 1910. The United States, Plaintiff in Error, j In rror to the Circuit Court of the United vs. L States for the South- Press Publishing Company. j H * tlM * [January 3, 191L] On .March 4, 1909, upon the assumed authority of the second section of an act of Congress approved July 7, 1898, (ch. 576, 30 Stat. 717), a grand jury in the Circuit Court of the United States for the Southern District of New York found a true bill against the Press Publishing Company, charging the commission of alleged criminal libels, set out in an indictment com posed of fourteen counts. The asserted libels were con tained in six issues of The World, a newspaper printed in the city of New York, of which newspaper the de fendant in error, a New York corporation, was pub lisher. The first seven counts dealt with the publication of the libels by circulating copies of the newspaper containing the same within the reservation and military post in Orange County, N. Y., known as West Point- The remaining counts dealt with the publication of each of the libels by the delivery of a copy of the issue of The World containing the same to a post office in spector at his office in the Post Office Building in the 70 city of New York. Both West Point and the Post Office Building were averred to be places within the exclusive jurisdiction of the United States. Those who were alleged in each count to have been criminally libelled were at the time of the publications the Presi dent of the United States, the Secretary of War and certain private individuals. The alleged libelous articles related to the purchase by the United States of the Panama Canal. We need not state the contents of the articles, since in the view taken of the case we shall be only called upon to determine \vtliether, conceding the publication to have been libelous as charged in the in dictment, they constituted offenses against the United States within the purview of the act of 1898. The case went to trial upon a plea of not guilty. The circulation of the newspapers containing the alleged libels on the military reservation and their delivery to the inspector at the post office as charged in the indict ment was admitted by the defendant. The Govern ment on the other hand admitted that all of the issues of The World newspaper referred to in the indictment were printed in the defendant s printing establishment in the city of New York and were circulated there from. At the close of the evidence introduced by the Gov ernment the defendant moved to quash the indictment or to instruct a verdict of acquittal, upon the follow ing grounds: "First. The court has no jurisdiction in this case "because there is no statute of the United States authorizing the prose cution. "Second. The act of 1898 does not apply to the case as dis closed by the evidence. "Third. If construed so as to cover the acts shown toy the evidence the act is unconstitutional. "Fourth. The offense, if any, was committed wholly within the Jurisdiction of the State of New York and was punishable there. "Fifth. The defendant feeing a corporation is incapable of committing the offense charged in the indictment." The court announced that it had concluded that the indictment was not authorized by the act of 1898, and therefore the motion to quash would be sustained. Be fore, however, any formal entry to that effect wai n made, in order to obviate any question of double jeop ardy, upon motion of the attorney for the United Statea a juror was withdrawn, and thereafter a judgment was duly entered quashing the indictment, it being ex pressly recited in the judgment that it was based upon a constriction of the statute. To review the action of the trial court this writ of error is prosecuted by the United States, under the authority of the act of March 2, 1907 (34 Stat. 1246). Mr. Chief Justice WHITE, ifter making the foregoing statement, delivered the opinion of the Court. As we have stated, the indictment was based on the act of July 7, 1898 (30 Stat. 717, section 2). The effect of the act, as pointed out in Franklin v. United States, 216 U. S. 559, 568-9, was to incorporate the criminal laws of the several States in force on July 1, 1898, into the statute, and to make such criminal laws to the ex tent of such incorporation laws of the United States, The text of the second section of the act of 1898 is this: That when any offense is committed In any place, jurisdic tion over which has been retained by the United States, or ceded to It by a State, or which has been purchased with the consent of the State for the erection of a fort, magazine, arse nal, dockyard or other needfuil building or structure, the pun ishment for which offense is not provided for by any law of the United States, the person committing such offense shall upon conviction in the Circuit or District Court of the United States for the district in which the offense was committed be liable to and receive the same punishment as the laws of the State In which said place is situated now provide for the like offense when committed within the jurisdiction of such State, and the said courts are hereby vested with jurisdiction for auch purposes; and no subsequent repeal of any such State law shall affect any such prosecution. (30 Stat. 717.)" As it is conceded that there is no statute of the United States expressly defining and punishing the crime of criminal libel when committed on a United States res ervation, etc., it follows that in order to determine the correctness of the ruling of the court below we are called upon, a, to accurately fix the extent to which, by the effect of the act of 1898, the criminal laws of the States were incorporated therein so as to authorize the punishment of crimes defined by such lawi at of- fenses against the United States, and, b, this being done, to make an analysis of the criminal laws of the State of New York to ascertain whether the particular offenses here charged were made punishable by those laws, and, if so, whether by virtue of the act of IbUS they constituted offenses against the laws of the United States punishable in the courts of the United States. It is certain, on the face of the quoted section, that it exclusively relates to offenses committed on United States reservations, etc., which are "not provided for by any law of the United States," and that as to such offenses the State law, when they are by that law de fined and punished, is adopted and made applicable. That is to say, while the statute leaves no doubt where acts are done on reservations which are expressly pro hibited and punished as crimes by a law of the United States, that law is dominant and controlling, yet, on the other hand, where no law of the United States has expressly provided for the punishment of offenses com mitted on reservations, all acts done on such reserva tions which are made criminal by the laws of the sev eral States are left to be punished under the applicable State statutes. When these results of the statute are borne in mind it becomes manifest that Congress, in adopting it, sedulously considered the twofold charac ter of our constitutional government, and had in view the enlightened purpose, so far as the punishment of crime was concerned, to interfere as little as might be with the authority of the States on that subject over all territory situated within their exterior boundaries, and which hence would be subject to exclusive State jurisdiction but for the existence of a United States reservation. In accomplishing these purposes it is ap parent that the statute instead of fixing by its own terms the punishment for crimes committed on such reserva tions which were not previously provided for by a law of the United States, adopted and wrote in the State law, with the single difference that the offense, although punished as an offense against the United States, was nevertheless punishable only in the way and to the extent that it would have been punishable if the terri tory embraced by the reservation remained subject to the jurisdiction of the State. While this meaning, we think, stands out in bold relief from the text of the section^ the correctness of such meaning will be never theless readily demonstrated, even if, for the sake of argument, it be conceded that tho text is ambiguous. We say this because a consideration of the genesis and development of the legislation which the act of 1898 embodies will leave no doubt that the construction we have given to the act enforces the exclusive and only purpose intended to be accomplished by its adoption. * It is undoubted, as pointed out in Franklin v. United States, supra, that the forerunner of the act of 1898 was the act of March 3, 1825 1 (ch. 65, 4 Stat. 115), since the act of 1898 is virtually a repetition of the act of 1825, except as to provisions plainly inserted merely for the purpose of bringing under the sway of the act United States reservations w.hich on account of the restrictive terms of the act of 1825 were not embraced within the sphere of its operations. The act of 1825 was entitled " An act more effectually to provide for the punishment of certain crimes against the United States and for other purposes." Sections 1 and 2 of the act provided for the punishment of arson when committed within any fort, dockyard and other enumerated places, the site whereof is ceded to, and under the jurisdic tion of, the United States/ The third section was as follows : "Sec. 3. And be it further enacted, That if any offense shall foe committed in any of the places aforesaid, the punishment of which offense is not especially provided for by any law of the United States, such offense shall, upon a conviction in any court of the United States having cognizance thereof, toe liable to and receive the same punishment as the laws of the State in ) which such fort, dockyard, navy-yard, arsenal, armory or mag azine, or other place, ceded as aforesaid, is situated, provide for the like offense when committed within the body of any county of such State." This section came under consideration in United States v. Paul, 6 Pet. 141, and it was held that its provisions referred only to the laws of the States existing at the time of the passage of the act, that is, those which were in force on March 3, 1825. It came also to pass that in considering the words "whereof is ceded" in the first ^action it was held that those words limited the opera- 74 tion of the act to places v. hich iiad been ceded to the United States prior to the enactment of the act of 1825. State v. Barney, 5 Blatch. 294- By the second section of the act of April 5, 1866 (ch. 24, 14 Stat. 13), Congress substantially re-enacted the third section of the act of 1825, changing, however, its phraseology so as to cause its provisions to apply not only, as did the act of 1825, to a place ceded to the United States, but to "any place which has been or shall hereafter be ceded." As thus adopted the act passed into the Revised Statutes as section 5391 and continued in force until the passage of the act of 1898, which, it will be at once observed, makes no substantial change concerning the fundamental scope and purpose of the prior statute, since it simply enlarged the extent of its operation by causing the statute not only to em brace reservations which had been ceded to the United States, but those which had been carved out of the public domain. If then the purpose and intent which led to the enact ment of the act of 1825 can be discovered and made plain it must clearly result, as that act was but the precursor of the act of 1898, that the light generated by the original intent and purpose will afford an effi cacious means for discerning the intent and purpose of the act of 1898. The basis of the third section of the act of 1825 was the eleventh section of a bill drawn by Mr. Justice Story, and of such eleventh section its author said (Life of Justice Story, Boston, 1851, vol. 1, p. 29-3): "This is the most important section of the whole bill. The criminal code of the United States is singularly defective and inefficient. . . . Few, very few, of the practical crimes (If I may so isay) are now punishable by statutes, and If the courts have no general common law jurisdiction (which is a vexed question), they are wholly distpunishable. The State courts have no jurisdiction of crimes committed on the high seas, or in places ceded to the United States. Rapes, arsons, batteries and a host of other crimes may in these places be now committed with impunity. Suppose a conspiracy to com mit treason in any of these places, by civil persons, how can the crime be punished? These are oases where the United States have an exclusive local jurisdiction. And can it be IBSB fit that the Government should have power to protect ItwlX in all other places wher it exercisei a legitimate authority? That Congress has power to provide for all crimes against the United States is incontestable." It is certain that the fundamental purpose thus con templated by Mr. Justice Story was not overlooked or intended to be departed from by the writer of the act of 1825. There can be no doubt on this subject, in view of the fact that Mr. Webster, the author of that act, in referring to the third section of the bill by him drafted and reported to Congress (which section, as we have said, was based upon the eleventh section of the bill drawn by Mr. Justice Story), said : " As to the third section, it must be obvious that, where the juiisdiction of a small place, containing only a few hundreds of people (a navy-yard, for instance), was ceded to the United States, some provision was required for the punishment of of fenses; and as, from the use to which the iplace was to ibe put. some crimeis were likely to ibe more frequently committed than others, the committee had thought it sufficient to provide for \ these, and then to leave the residue to be punished by the ilaws V of the State in which the yard, &c. f might <be. He was persuaded that the people would not view it as any hardship that the great class of minor offenses should continue to be punished in the same manner as they had been before the cession. (Id. 338.)" The demonstration of the purpose and scope of the act of 1825 is, if possible, made clearer by an amend ment to which the act was subjected before it reached its final legislative form. As originally reported the fourth section provided for the punishment of certain designated crimes by the law of the United States when committed "upon the sea, or in any arm of the sea, or in any river, haven, creek, basin or bay, within ^the admiralty and maritime jurisdiction of the United States." But this provision was qualified in the passage of the bill by the adoption of an amendment which added the words, "and out of the jurisdiction of any ) particular State." This amendment as finally adopted was the result in a somewhat modified form of a prior amendment offered by Mr. Wickliffe of Kentucky. It* meaning is not left to doubt, since Mr. Wickliffe in urging the adoption of the amendment expressly stated that it was "intended to prevent collisions between the , authority of the General and State Governments. He conceived the State Government! to be enti:-ely > competent to inquire into and punish crimes committed re within their own jurisdiction, and that, as there was no necessity, there would be no advantage in giving the United States concurrent power to do the same." Register of Debates in Congress, Gales & Seaton, 1824- 1825, vol. 1, p. 154; Ib. pp. 157, 165-166, 166-167, 168, 335, 335h, 338. Having fixed the meaning of the act of 1898, and, as heretofore stated, there being no law of the United States specifically punishing the offense of criminal libel (when committed on a reservation, etc., of the United * States, it remains only to determine whether, applying the lav, of the State of New York, in accordance with the act of 1898, there was power in the Grand Jury to present the indictment here under consideration or au thority in the courts of the United States to entertain jurisdiction thereof as charging a substantive and dis tinct offense under the laws of the United States. That is to say, was the indictment found below consistent \ with the application of the State law in accordance with the provisions of the act of 1898 ? The provisions of the penal code of Tew York on the subject of criminal libel at the date mentioned were as follows (Laws ISTew York, 1881, vol. 3, chap. 8): "Sec. 243. A person who publishes a libel is guilty of a mis demeanor. "Sec. 245. To sustain a charge of publishing a libel it is not necessary that the matter complained of should have been seen by another. It is enough that the defendant knowingly dis played it, or parted, with its immediate custody, under circum stances which exposed it to be seen or understood by another person than himself." Sections 249 and 250, in substance, provided that where a person libeled is a resident of the State the prosecution shall be either in the county of such resi dence or the county where the paper is published, and that where the person libeled is a non-resident the pros ecution shall be in the county in which the paper, on its face, purports to be published, or, if it does not so indi cate, in any county in which it was circulated. "Sec. 251. A person cannot he indicted or tried for the publi cation of the same liibel, against the same person, in more than one county." TT Section 138 of the Code of Criminal Procedure (Laws of Tew York, 1881, voL 2, p. 43) contains simi lar provisions as to the place for the prosecution of a libel, and the immunity from liability to prosecution in. more than one county. It was further provided: "Sec. 139. When an act charged as a crime is within the Juris* diction of another State, Territory or county, as well as within the jurisdiction of this State, a conviction or acquittal thereof in the (former Is a bar to a prosecution or indictment therefor in this State. "Sec. 140. When a crime is within the jurisdiction of two or more counties of this State, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment thereof in another." In view of the unity between the act of composing and the primary publication of a newspaper containing a libelous article within the State of New York, and of subsequent publications or repetitions thereof by the publisher of the newspaper which are clearly the resultant of the provisions of the laws of New York above quoted and referred to, two propositions are, we think, plainly established: Fitt, that adequate means were afforded for punishing the circulation of the libel on a United States reservation by the State law and in the State courts without the necessity of resorting to the courts of the United States for redress. Second, that resort could not be had to the courts of the United States to punish the act of publishing a newspaper libel by circulat ing a copy of the newspaper on the reservation upon the theory that such publication was an independent offense, separate and distinct from the primary printing and pub lishing of the libelous article within the State of New York, without disregarding the laws of that State and frustrating the plain purpose of such law, which was that there should be but a single prosecution and conviction. These propositions being true, it follows in the light of the construction which we have given the act of 1898 that the court below was right in quashing the indict ment as not authorized by that act. 2To other conclu sion we think was possible, as the court could not have sustained the indictment without giving to the statute 78 a meaning directly conflicting with the construction which we have affixed to it. In other words, the court could not have upheld the indictment without deciding that because the statute provided that acts when com- anitted on United States reservations, which were not expressly made criminal by a lav;; of the United States, might be prosecuted and punished in accordance with the State law, therefore a prosecution was authorized which was inconsistent with that law and in disregard thereof. And, further, albeit that Congress having regard for l_the autonomy of the States had deemed it best not to treat reservations within States as foreign to the States for the purpose of punishing crime unless expressly provided to the contrary, nevertheless the legislation enacted by Congress for this purpose had destroyed the end contemplated, since that legislation when rightly construed, while applying the State legislation to crimes committed on a reservation as if the territory was not foreign but domestic, at the same time exacted that the State law when thus applied should be enforced as if the territory was in no respects for the purpose domes tic, but on the contrary was wholly foreign. The con tradiction and confusion to which the contention thus reduces itself is too apparent to require anything but statement. Indeed, we think the misconception just pointed out lies at the basis of all the propositions so ably pressed at bar to secure a reversal, since they all depend upon a construction of the act of 1898, which we hold to be wrong. Great therefore as might other wise be their potency with the foundation gone upon which they rest, all come to this, that the statute sanc tions that which it by necessary implication prohibits, and, moreover, destroys the great public purpose which its adoption was intended to foster and protect. The ruling which we now make does not of course extend to a subject which is not before us. It follows, therefore, that we do not now intimate that the rule whi^h in this case has controlled our decision would be applicable to a case where an indictment was found in y a court of the United States for a crime which was wiholly committed on a reservation, disconnected with acts committed within the jurisdiction of the State, and where the prosecution for such crime in the courts of the United States instead of being in conflict with the applicable State law was in all respects in harmony therewith. Affirmed. Tru copy. 80 COMMEJSTT OF THE CHIEF JUSTICE. As Mr. Chief Justice White laid down the printed copy of the Court s opinion on the desk before him, having finished reading it, he said : It would be impossible to sustain this prosecution without overthrowing the very State law by the author ity of which the prosecution can be alone maintained. "It goes further than that, we think. It is manifest, when the text of the law is considered, and its historical evolution is borne in mind, that the impelling and mo tive power for its adoption was the sedulous purpose of Congress to respect the autonomy of the States and not cause every reservation situated in a State, if Congress had not legislated to the contrary, to become distinct and separate foci for all purposes of criminal legisla tion, conflicting with and perhaps antagonistic to ttw laws of the States, and therefore destructive in aspects of the very fundamental conceptions upon which our Government is founded. "In other words, we think, when the statute is rightly construed, that the case reduces itself to this: That the State law must be applied for the purpose of punishing the crime, and in order to accomplish that purpose and make it effectual the State law must not be disregarded by which alone the crime can be punished ; that for the purpose of punishing the crime and applying the State law a reservation in the interior boundaries of the State is to be considered within the State, and yet for the purpose of executing the law the reservatipn is to be considered wholly foreign and the prosecution conducted as if it was totally beyond the confines of the State. "For this reason, we think, the Court below was right and its judgment is affirmed." BE LANCET NIOOLL S VIEW OF THE CASE. Be Lancey Nicoll, counsel for The World, who argued The World case before Judge Hough in the Circuit Court, and later argued the appeal before the Supreme Court, when informed of the decision of the Court at hi? home in !N"ew York that night, said: The decision of the Supreme Court was most accepta/ble. "It sustains the whole contention made by The World from 81 the beginning; that the Federal courta had no jurisdiction over libels first printed and published in the States, and that the State courts were the proper tribunals for those to resort to who had the time and inclination to vindicate their charac ters. "It is a great triumph for Mr. Pulitzer and The World! "A President of the United States, by a special message to Congress, denounced Mr. Pulitzer in a most unprecedented and unjustifiaible way and instructed the Attorney-General and the District-Attorney to proceed against him in the Federal courts. "A resort was had to an ancient statute which was misin terpreted to suit the purposes o,f the Government. "It was New Nationalism run mad! "Mr. Pulitzer saw in this attempt a dangerous and deadly assault upon the liberty of the press an attempt to control it by the colossal power of the Federal Government. He determined to make a fight against it, not on his personal account alone, but because of the great principle involved. "The victory belongs to Mr. Pulitzer and to The World, for it is no exaggeration to say that if the contention of the Government had been sustained one of the foundations of our liberty would have been destroyed. "A free government cannot exist without a free press." WHAT FORMER UNITED STATES ATTORNEY JOSEPH B. KEALING HAD TO SAY. Joseph B. Kealing, a leader of the Republican party in Indiana and former United States District-Attorney, by appointment from President Roosevelt, who resigned his commission rather than prosecute the proprietors of the Indianapolis News on its indictment, said that night at his home in Indianapolis: "The decision in the New York World case is very similar to the decision in the News case rendered by Judge Anderson. It sustains my point made w<hen I resigned, that there was no ground for bringing such action in the Federal court in hopes of dragging the proprietors of the News and The World to Washington for trial on alleged offenses they had not com mitted there. "I could not proceed with such a case when it was apparent that there was such a great principle at stake and that an injustice was being attempted. "The decision of the Su-preme Court certainly riddlea the efforts of Mr. Roosevelt to make a case against the proprietors ol the News and The World at Washington. It Is also a vindi cation of Judge Andereon that will be received with very great pleasure throughout Indiana, in view of the things said about him by Mr. Roosevelt on his visit here during the recent cam paign." SOLICITOR-GENERAL LETTMANJST DECLARED THE DECISION "SOUND LAW." Frederick W. Lehmann, Solicitor-General of the United States, said at his home in Washington that night of the decision of the United States Supreme Court in favor of The World: "I sat In the Supreme Court room this afternoon and listened with great interest to the Chief Justice as he rendered his decision in the case of libel attempted to be brought on Federal reservations against the New York World. The decision of the Court impressed me as sound law." COL. KOOSEVELT HAD ^OTHING TO SAY." Col. Roosevelt, though given every opportunity that night by a reporter of The World, who went to his home at Oyster Bay to give his opinion of the decision, contented himself by saying and reiterating: "I have nothing to say." ROOSEVELT S COOTESSIOK Later, during his trip to the Pacific coast, ox-Presi dent Roosevelt, in a speech to the students of the Uni versity of California at Berkeley, Cal., on March 23, 19<11 7 said: "I am interested in the Panama Canal because I started it. If I had followed traditional conservative methods I should have submitted a dignified state paper of probably two hundred pages to the Congress and the debate would have been going on yet. But I took the Canal Zone and let Congress debate, and while the debate goes on the canal does also." NO LESE-MAJESTY- NO PRESIDENTIAL MUZZLING OF THE PRESS [EDITORIAL IN THE WORLD, JAN. 4. 1911.] There is no Federal libel law to mu^le American news papers. Freedom of the press does not exist at the whim or pleasure of the President of the United States. It is at the mercy of no lt steward of the public welfare" The rights and powers and authority of the States cannot be taken over by a usurping Federal Government. This is the meaning of the unanimous decision handed down by the United States Supreme Court yes terday in the Koosev.elt-Panauia libel case against The World. It is the most sweeping victory won for freedom of speech and of the press in this country since the Amer ican people destroyed the Federalist party more than a century ago for enacting the infamous Sedition law. In unanimously sustaining Judge Hough s decision quashing the Koosevelt indictments against The World on the ground that the Federal Government had no jurisdiction, the Supreme Court upholds every conten tion advanced by The World since the outset of this prosecution. In resisting the Federal Government s claim to jurisdiction The World has sought to shirk none of its legal obligations. It has raised no question as to the complete and absolute responsibility of every newspaper to the libel laws of the State in which it is published, no matter how drastic those laws may be. It admits such responsibility, it accepts such responsibility and cheerfully abides by it. While believing that the Panama articles printed in The World libelled nobody, we should have welcomed a trial of that issue on its merits had the case been brought in the State courts of New York by Mr. Roose velt or any other person who considered himself ag grieved. There was no issue here between liberty of the press and license of the press. The courts of this State are open to every person who believes that he has been wantonly wronged by a newspaper, whether he be a ditch-digger or a President. The laws of this State are adequate. All the nominal complainants in the 86 Roosevelt-Panama libel indictments against The World could have appealed to the New York courts, but no such appeal was ever made. Instead Mr. Roosevelt as President sought to estab lish the doctrine of lese-majesty. When The World demanded a Congressional investigation to ventilate the purchase of the Panama Canal properties from the bankrupt French company, he sent a special message to Congress declaring that The World s news reports were "a libel upon the United States Government," that Mr. Pulitzer "should be prosecuted for libel by the Govern ment authorities" and that "the Attorney-General has under consideration the form in which the proceedings against Mr. Pulitzer shall be brought." In the New York proceeding the Roosevelt indict ment was brought under an act of Congress passed orig inally in 1825 "to protect harbor defenses and fortifica tions constructed or used by the United States from mali cious injury, and for other purposes" Federal jurisdiction was claimed by Mr. Roosevelt and Attorney-General Bonaparte under the pretext that the regular circulation at West Point of 29 copies out of 382,410 of The World containing certain Panama news articles, and the sending of 1 copy free to a Post- Office inspector in the Government Building in New York City in compliance with the postal regulations, constituted the publication of a libel in these reserva tions, and that under this statute the Federal Govern ment should criminally prosecute The World. Mr. Roosevelt s Attorney-General Bonaparte through Mr. Roosevelt s District-Attorney Stimson advanced the further proposition that such prosecution should be car ried on "in a number of distinct and independent juris dictions" and that "in each of these jurisdictions, under well-known principles of law, each of these publications would constitute a separate offense" As there are no fewer than 2,809 reservations corresponding in general to West Point and the Federal Building, there is no newspaper in the United States which would not have been subject to Federal prosecution for libel under thii Roosevelt theory of the law. A newspaper of large cir culation might have been indicted in all these juriadic- 87 tions by command of the President for an article that was neither written nor printed in any of them. There are few newspapers in the United States which could not be ruined financially by the mere legal ex pense of having to defend themselves in "a number of distinct and independent jurisdictions." Whenever the President of the United States wished to destroy a newspaper that had offended him by political criticism lie would have had only to compel it to match its scanty resources against the vast resources of the United States Government. He would have had only to employ the process that Mr. Roosevelt used against The World when he gave his orders to the Attorney-General, who gave his orders to the District-Attorney, who told the Grand Jury to indict and the Grand Jury indicted. All the National Government s tremendous machinery of prosecution could be set in motion at the command of a President like Theodore Roosevelt, without regard to constitution or law or justice or anything except the personal and political resentment of a vindictive Exec utive . This was the real issue involved in the Roosevelt pro ceedings, and in resisting the claim of Federal jurisdic tion The World was fighting to preserve not only its own constitutional rights but the constitutional rights of every newspaper published in the United States. It was fighting to maintain constitutional guarantees with - ont which there can be no free and full discussion of any national political question in this country without which political liberty exists only at the pleasure of an elective Autocrat. For this reason The World felt that it should not rest content with Judge Hough s decision of Jan. 26, 1910. quashing the Roosevelt indictments in the United States Court for the Southern District of ~N"ew York. Judge TTough himself suggested that the way was open to a speedy appeal to the United States Supreme Court. The World urged President Taft and Mr. Wickershara ^to make such appeal in order that the vital question in volved mie ht be decided "by the final interpreter of the Constitution. It was in response to The World s edi torials that the appeal was taken at the last moment, 88 and in carrying this case to the court of last resort Mr. Taft and Mr. Wiekersham rendered a notable service to the cause of American liberty. The decision of the Supreme Court is so sweeping that no other President will be tempted to follow in the footsteps of Theodore Roosevelt, no matter how greedy he may be for power, no matter how resentful of oppo sition. No other Attorney-General, however subservi- ont, will pretend that a Federal libel law can be created by Executive interpretation or construction. No other District- Attorney will win a nomination for Governor of New York by making himself the willing tool of a President in such an attack upon constitutional guaran tees and liberties, No other Administration will assert that the freedom of the press is a Presidential privilege and not a constitutional right. As Do Lancey Nicoll, The World s counsel, said in his argument before the. Supreme Court: As a matter of fact this prosecution is premature. It is born before its time. It (belongs to that new dispensation -when the Federal Government shall have taken to itself all power and all authority, When the States shall have been reduced to mere geographical divisions of the national domain, and when Fed eral tribunals shall no longer decide cases in accordance with precedent and authority and the Haw of the land, but in accord ance with the need and spirit of the time as they may be inter preted by some great steward of the public welfare. Tt was indeed premature. With the smashing of the New Nationalism at the November elections comes the smashing of the Roosevelt doctrine of lese-majesty and the smashing of the Roosevelt doctrine of Nullification by the highest tribunal of the nation. We are still liv ing under a government of laws and not of men. We are still living under the old Constitution as interpreted by the Supreme Court of the United States, not under the New Nationalism as interpreted by some "steward of the public welfare 7 in Washington. The great constitutional issue involved in the Iloose- volt libel proceeding against The World is settled for all time. The freedom of the press is established be yond the power of Federal usurpation. As for the Pan ama matter itself, The World in due season will present the evidence in its possession to the Congress of the United States and renew its demand for a searching in vestigation. 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. 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